0120142895
01-21-2016
Cheryll K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cheryll K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120142895
Agency No. 4F-926-0189-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 13, 2014, dismissing her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the reasons stated below, the Commission affirms the Agency's dismissal of this complaint.
ISSUE PRESENTED
The issue presented is whether the Agency erred in dismissing Complainant's complaint after it was determined that these claims were the same claims pending before or which had previously been decided by the Agency or Commission.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Distribution Clerk at the Agency's Diamond Bar Branch in Diamond Bar, California. On August 5, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability (to be specified), age (57), and reprisal for prior protected EEO activity when:
1. On June 2, 2014, she became aware that on August 27, 2013, the Agency disclosed her medical conditions and history to a Walnut Post Office supervisor without merit; and
2. From January 2013 thru April 2014, the Agency improperly maintained and disclosed her medical information and history at the Diamond Bar Post Office without merit.
The Agency dismissed these claims as it found that these claims were the same claims pending before or which had been decided by the Agency or Commission. Specifically, the Agency found that a review of the instant complaint revealed that it concerned the same matters raised in Agency Case No. 4F-926-0210-13. The Agency noted that on February 24, 2014, Complainant requested an EEOC hearing and on February 28, 2014, it forwarded the Report of Investigation (ROI) to the EEOC.
The Agency found that the issues raised in the instant complaint were merely a reiteration and extension of the previous complaint. There was no indication that the original fact pattern was distinctly different from that of the instant complaint. Complainant alleged that she became aware that management improperly disclosed her medical information. The matter of improper disclosure of her medical records is currently before the Commission in Agency Case No. 4F-926-0210-13. Complainant's present complaint involves the same issues and timeline. The Agency maintained that the fact that she included dates thru April 2014 in this complaint was merely an extension of her previous complaint and could be brought forward at her hearing. Therefore, the Agency dismissed Complainant's claim as stating the same claim that was pending before or had been decided by the agency or Commission in accordance with 29 C.F.R. � 1614.107(a)(1).
CONTENTIONS ON APPEAL
On appeal, Complainant argues that she asked if she could amend her complaint in Agency Case No. 4F-926-0210-13 to include the dates thru April 2014, but she was denied. Complainant asserts that her present claim shows a pattern of harassment and therefore, her claims should not be disregarded or dismissed. She maintains that the Agency's actions are incomplete, inadequate, and/or non-responsive to her claims. Complainant requests that the Commission order the Agency to investigate these claims.
ANALYSIS AND FINDINGS
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9, � VI. (Aug. 5, 2015) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision. The Commission has long held that an Agency must dismiss an allegation that is pending before or has already been decided by the Agency or Commission. See Rainville v. U.S. Postal Service, Appeal No. 01A51952 (May 4, 2006).
In the present case, we find that the instant complaint is merely a reiteration and extension of the previous complaint. The record reveals that the matter of the improper disclosure of Complainant's medical records is currently before the Commission in Agency Case No. 4F-926-0210-13. The fact that Complainant included dates through April 2014, in this complaint is merely an extension of her previous complaint and may be brought forward at the hearing because Complainant requested a hearing in case no. 4F-926-0210-13. We note that other than the extended date of violation, Complainant has not provided any evidence that demonstrates that these two claims are not the same as those pending before the Commission. Accordingly, we find the instant complaint was properly dismissed as stating the same claim that is pending before or has been decided by the Agency or Commission in accordance with 29 C.F.R. � 1614.107(a)(1).
CONCLUSION
The Agency's FAD which dismissed Complainant's claim is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, P.O. Box 77960, Washington, DC 20013. 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 Mdden's signature
Carlton M. Hadden, Director
Office of Federal Operations
_1/21/16_________________
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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