0120181126
05-02-2018
Denis M,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
Denis M,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120181126
Agency No. 1F901000118
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's December 22, 2017, dismissal of 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., 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Mail Processing Clerk (PS-06) at its Los Angeles Processing and Distribution Center in Los Angeles, California.
On December 14, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (white), national origin (unspecified), sex (male), disability (Crohn's Disease), and age (59 at the time of the event) when:
1. In 2009 management refused to pay him for 88 hours of jury duty pay, and,
2. In 2009, he was put on Emergency Placement in an Off-Duty Status.
Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
ANALYSIS
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. To be dismissed as the "same claim," the present formal complaint and prior complaint must have involved identical matters. The Commission has consistently held that in order for a formal complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. United States Postal Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996).
The Agency properly dismissed Complainant's complaint for stating the same claim in multiple prior EEO actions, including one Complainant already raised before this Commission. See EEOC Appeal No. 0120131596 (Jul. 19, 2013). In his prior complaint before this Commission, Complainant alleged, among other things, that "in 2009 the Agency refused to pay for 88 hours of jury duty" and "in 2009 he was placed on Emergency Placement in an off duty non-pay status," citing the same bases for discrimination identified in this complaint.
Dissatisfaction with Complaint Processing
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. Chapter Five of the EEOC Management Directive 110 (MD-110) (Aug. 5, 2015) defines such a complaint as a "spin-off" complaint. On appeal, Complainant describes dissatisfaction with the Agency's Alternative Dispute Resolution ("ADR") process, and indicates his confusion over ADR, and the EEO process, as well as frustration playing "phone tag" with EEO officials. We find Complainant is attempting to raise "spin off" complaints. The proper forum to raise such allegations would have been with the agency official responsible for complaint processing and/or processed as part of the original complaint (rather than on appeal). Regarding Complainant's confusion, we highly recommend reviewing the Commission's website, which contains extensive EEO resources explanations.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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
May 2, 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
0120181126
3
0120181126
5
0120181126