0120182211
09-13-2018
Bart M,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bart M,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120182211
Hearing No. 460-2015-00066X
Agency No. 4G-770-0227-14
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 17, 2018, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's Missouri Carrier Annex facility in Missouri City, Texas.
On September 29, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: On July 12, 2014, based on a Rural Route mail count on Complainant's route, his route was reduced from 45K to 43K.
The Agency accepted the complaint for investigation. Following the investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On June 22, 2015, the Agency filed a motion to dismiss the complaint. In the motion, the Agency indicated that a fair reading of the record shows that Complainant's route was reduced on December 15, 2012. It was in July 2014, he learned that a female coworker was treated more favorably when she did not have her route reduced. The Agency noted that Complainant had filed a prior EEO complaint, namely Agency No. 4G-770-0071-13. The Agency issued a final decision on that complaint on November 30, 2012. As such, the Agency moved that the AJ dismiss the complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
On May 8, 2018, the AJ issued a decision dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency implemented the AJ's decision. This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides for the dismissal of a complaint that states the same claim that is pending before or has been decided by the Commission or the Agency. A review of the record demonstrates that Complainant alleged discrimination when he learned that a coworker (Black, female) did not have her workload reduced in July 2014. Complainant did not indicate in his formal complaint nor his affidavit when his workload was reduced from 45K to 43K. The Report of Investigation includes a copy of Complainant's Standard Form 50 (SF50) dated December 15, 2012, which indicated that Complainant's workload had been reduced. The record included Complainant's addition SF50 providing an increase in salary and workload since December 2012. However, no other documents showed that Complainant experienced a reduction from 45K to 43K as asserted in his formal complaint except the one which occurred in December 2012.
Complainant had previously filed a formal complaint alleging discrimination when on December 15, 2012, his workload was decreased from 45K to 43K. It appears that the only information provided by Complainant is evidence of a new comparator. The discovery of new comparators does not give rise to a new complaint. Forsett v. U.S. Postal Serv., EEOC Appeal No. 0120093287 (March 17, 2011) (complaint fails to state a claim where, by arguing that another employee was treated differently four years after he was disciplined, Complainant is offering new evidence to support his prior complaint). Based on the foregoing, we find that to the extent, Complainant is alleging that he was treated differently than the coworker with respect to his workload, the AJ properly dismissed this matter for alleging the same claim as in a prior EEO complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final action implementing the AJ's decision dismissing the complaint at hand.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 13, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120182211
4
0120182211