0120170060
11-29-2016
Charles G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Charles G.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120170060
Agency No. 1C371005216
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 17, 2016, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic at the Agency's P&DC facility in Memphis, Tennessee.
On August 5, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and reprisal when, on February 9, 2016, he requested an update on the promotion eligibility roster (PER) and management did not respond.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for stating the same claim as one previously filed. The Agency also asserted that the complaint was an improper collateral attack on the Freedom of Information Act (FOIA) process. The instant appeal followed.
ANALYSIS AND FINDINGS
As an initial matter, the record contains no evidence that Complainant ever filed a FOIA request. Therefore, we find no support for the Agency's dismissal of the complaint as a collateral attack on the FOIA process.
With regard to the other ground for the dismissal, the regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. The Agency dismissed the instant complaint, determining it was identical to a previously filed EEO complaint, identified as Agency Complaint No. 1C-371-0080-16 and currently pending a hearing before an EEOC Administrative Judge (EEOC Hearing No. 490-2016-00118X).
In 1C-371-0080-16, Complainant alleged that on September 16, 2015, he was interviewed to be placed on the PER and was deemed ineligible. Sometime later, Complainant apparently claimed that he had a disability which impacted on his ability to perform during an interview. He requested a reasonable accommodation to address this issue and essentially asked that the ineligibility determination be reconsidered. When he did not hear back from the management on his request, he filed a grievance on the matter through his union. On April 27, 2016, Complainant received a decision on his grievance, which stated management was waiting to receive the results of its Reasonable Accommodation Committee (RAC) before deciding whether or not to grant Complainant another interview for the PER. Complainant then sought EEO counseling on the instant complaint, alleging that he was being subjected to discrimination on the basis of disability, as well as unlawful retaliation, when management failed to make a decision on his request made through his grievance for a new interview and reconsideration of his eligibility for the PER.
Thus it is clear that both complaints challenge the determination of Complainant's ineligibility on the PER roster. The grievance was essentially a request to reconsider the initial decision, and the instant complaint raises the same issue as the grievance. In essence, we conclude that both complaints challenge a single employment decision - the decision to find Complainant ineligible for the PER roster. Complainant's later complaint, at issue here, concerns the Agency's non-response to his request to reconsider the initial ineligibility determination. As such it is an extension of the complaint on that initial decision and not an independent claim. During the hearing on 1C-371-0080-16, Complainant should raise these additional concerns about how the Agency responded to his request to reconsider the initial eligibility decision.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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
November 29, 2016
__________________
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.
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