Patrick S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionJan 6, 20160120142131 (E.E.O.C. Jan. 6, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Patrick S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120142131 Agency No. 4J-604-0064-14 DECISION Complainant filed an appeal with this Commission from the Agency's decision dated April 14, 2014, 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. For the following reasons, the Commission AFFIRMS the Agency’s decision. On April 2, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and sex (male) when: On August 6, 2013, Complainant was issued a Seven-Day Suspension for Delay of First Class Mail and a coworker and Complainant’s supervisor were not given discipline when they delayed first class mail. The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted Complainant did not initiate pre- complaint processing until February 12, 2014, which was made 190 days after Complainant received the seven-day suspension. The Agency also dismissed Complainant 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. The Agency noted that the claim raised in the present complaint is the same matter raised in Agency Case No. 4J-604-0028-13. The 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. 0120142131 2 Agency noted that on February 27, 2014, Complainant requested an EEOC hearing on Agency Case No. 4J-604-0028-13 and on March 5, 2014, the Agency forwarded the Report of Investigation (ROI) to the EEOC. On appeal, with regard to the Agency’s dismissal on the grounds of untimely EEO Counselor contact, Complainant claimed that circumstances beyond his control prevented him from contacting the counselor within the time limits because he is not allowed access to the personnel folders of other employees. With regard to the dismissal for stating the same claim, Complainant stated that his prior complaint initiated in September 2013, was initially for retaliation for EEO activity and the current complaint adds another person and involves a claim of sex discrimination. 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 record reveals that in Agency Case No. 4J-604-0028-13 Complainant alleged that he was subjected to discrimination in retaliation for protected EEO activity when on August 6, 2013, he was issued a Seven-Day Suspension. After a review of the record, the Commission finds that the current complaint states the same claim as was raised in the earlier complaint. The discovery of a new comparative does not give rise to a new complaint. We find that although the basis alleged in the instant complaint is different, the factual claim is identical to the matter already raised by Complainant. Accordingly, the Agency’s final decision dismissing Complainant’s complaint is 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 0120142131 3 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 January 6, 2016 Date Copy with citationCopy as parenthetical citation