Dewey R.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Aug 22, 2019

2019003026 (E.E.O.C. Aug. 22, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Dewey R.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.

Appeal No. 2019003026

Agency No. 4E-840-0068-18

DECISION

Complainant filed this appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency’s final decision dated January 24, 2019, 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 of the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Letter Carrier at the West Valley Post Office
in South Jordan, Utah.

On January 7, 2019, Complainant filed a formal complaint alleging that discrimination based upon
his sex (male), age (40), and in reprisal for his EEO activity when:

1. in February 2018, Complainant’s request for an emergency
placement to another office was not granted; and

2. on August 15, 2018, Complainant felt harassed when a previous
manager showed up to his work location at West Valley Post Office.

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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On January 24, 2019, the Agency issued the instant final decision. The Agency dismissed claim
1 pursuant to 29 C.F.R. § 1614.107(a)(1), on the grounds that it stated the same claim as raised
in a prior formal complaint pending before an EEOC Administrative Judge (AJ), identified as
Agency Case No.4E-840-0017-08.

The Agency dismissed claim 2 for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1).

The instant appeal followed. On appeal, Complainant contends that the Agency had improperly
dismissed legitimate claims relating to his former manager committing provocative retaliatory
misconduct. Complainant further stated the Agency had violated its own zero tolerance policies
by failing to protect him from his former manager’s threatening behavior toward him.
Complainant accused the Agency of covering up ongoing supervisory harassment.

ANALYSIS AND FINDINGS

Claim 1

EEOC Regulation 29 C.F.R. 1614.107(a)(1) provides that an agency shall dismiss a formal
complaint that states the same claim that is pending before the agency or Commission.

The record reflects that on April 6, 2018, Complainant filed a formal complaint, identified as Case
No. 4E-840-0017-08, regarding a series of alleged incidents of discriminatory harassment,
including a matter identified in the “Acceptance for Investigation” document as follows: on
February 5, 2018, [complainant was] denied a transfer due to a poor safety record.” This matter
is pending before an AJ, and a fair reading of the prior complaint and the instant complaint reflects
that they address the same matter.

The Agency’s decision to dismiss claim 1 for the reason discussed above is therefore AFFIRMED.

Claim 2

In claim 2, Complainant claims that he felt harassed when a former supervisor appeared at his
work location. This matter, standing alone, may well fail to state a justiciable claim as determined
by the Agency. However, as noted above, Complainant has filed a prior complaint (Case No. 4E-
840-0017-08) pending before an AJ, which appears to relate to Complainant’s broader claim of
harassment. When viewed in the context of Complainant’s broader harassment claim, the matter
identified in claim 2 is further evidence proffered in support of the harassment claim pending
before the AJ. See e.g., Ann M. King v. U.S. Postal Serv., EEOC Appeal No. 0120080823 (May
9, 2008). In order to avoid fragmentation of Complainant’s harassment claim, we will order the
Agency to seek to amend Case No. 4E-840-0017-08 to add the matter that is the subject of claim
2 as more fully delineated in our order below.

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CONCLUSION

Accordingly, the Agency’s final decision to dismiss claim 1 for stating the same claim as raised
in a prior complaint was proper and is AFFIRMED.

The Agency decision to dismiss claim 2 for failure to state a claim is REVERSED. Claim 2 is
REMANDED to the Agency for further processing in accordance with the ORDER below.

ORDER

Within ten (10) calendar days of the date of this decision, the Agency is ORDERED to file a
motion, accompanied by a copy of this appellate decision, with the EEOC AJ assigned to
adjudicate Case No. 4E-840-0017-08. The motion shall request that the AJ amend the pending
harassment claims to add the matter in claim 2 of the instant complaint. The AJ shall decide how
to best develop the factual record on this allegation. A copy of the Agency’s motion to amend
filed with the AJ must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to
Complainant and his representative.
If the Agency does not comply with the Commission’s order, Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). Complainant also has the
right to file a civil action to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
§ 1614.503(g). Alternatively, Complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29
C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV
1999). If Complainant files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.

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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

The Commission may, in its discretion, reconsider the decision in this case if 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. 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 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. 29 C.F.R. § 1614.604. The agency’s request must be submitted in
digital format via EEOC’s Federal Sector EEO Portal (FedSEP). 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. 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610)

This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to
continue its administrative processing of a portion of your complaint. You have the right to file a
civil action in an appropriate United States District Court within ninety (90) calendar days from
the date you receive this decision on both that portion of your complaint which the Commission
has affirmed and that portion of the complaint which has been remanded for continued
administrative processing. In the alternative, you may file a civil action after one hundred and
eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal
with the Commission, until such time as the Agency issues its final decision on your complaint.
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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

August 22, 2019
Date