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

Equal Employment Opportunity Commission

Aug 16, 2019

2019003027 (E.E.O.C. Aug. 16, 2019)

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

Douglas R.,1
Complainant,

v.

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

Appeal No. 2019003027

Agency No. 1F921004918

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's 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 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 worked as a General Expeditor,
GS-7, at the Agency’s San Bernardino Processing and Distribution Center facility in San
Bernardino, California.

On October 27, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of race (African-American) and age when, on June 5, 2018
and ongoing, the Agency denied him an opportunity for training in transportation.

The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for stating the
same claim that is pending before or has been decided by the Agency or Commission. In so
doing, the Agency found the instant claim states the same claim as that in Agency Complaint No.

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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1F-921-0011-18, which was filed on February 26, 2018, wherein Complainant alleged
discrimination when, on January 15, 2017, his requests to management to be detailed in the
Transportation Department were denied. The Agency found that the incidents in the instant
complaint are identical to or derive from and are inextricably intertwined with those issues in the
prior case and there is no indication that the original fact pattern in these cases are distinctly
different. The Agency notes that Complainant requested a hearing on 1F-921-0011-18 before an
EEOC Administrative Judge (AJ).

The instant appeal followed. On appeal, Complainant submits a copy of the Commission’s
decision, dated July 3, 2018, remanding Agency Complaint No. 1F-921-0011-18, to the Agency
for further processing. The Agency has not submitted a brief or statement in response to the
appeal.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of a complaint that
states the same claims 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 complaints
must have involved identical matters. It has long been established that “identical” does not mean
“similar.” The Commission has consistently held that in order from 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. USPS, EEOC Appeal No.
01955890 (April 5, 1996).

The Agency properly dismissed the instant complaint for stating the same claim that is pending
before or has been decided by the Agency or Commission. A fair reading of the issue in the prior
complaint, Agency Complaint No. 1F-921-0011-18, is whether, from January 15, 2017 and
continuing, the Agency discriminated against Complainant in denying him training in
transportation. In the instant complaint, Complainant alleges the Agency continues to subject
him to the same ongoing discrimination in denying him training in transportation. By submitting
a copy of the Commission’s remand of 1F-921-0011-18, in lieu of a statement or brief, it is
reasonable to conclude that he is suggesting the prior complaint has some relation to the instant
complaint. We find the instant complaint presents the same claim of ongoing discrimination as
alleged in the prior complaint, Agency Complaint No. 1F-921-0011-18. They are identical in
time, place, incident, and parties.

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:
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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
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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 16, 2019
Date