[Redacted], Amanda H., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Sep 2, 2021

Appeal No. 2021002583 (E.E.O.C. Sep. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Amanda H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021002583 Agency No. 1B-112-0001-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 1, 2021, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Handler, MH- 04 at the Agency’s Processing and Distribution Center in Brooklyn, NY. On December 29, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Asian) and national origin (Asian Chinese) when: 1. On various dates from August 2019 through March 22, 2020, Complainant’s supervisor verbally abused Complainant, teased her, and changed her job assignments. 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. 2021002583 2 2. On June 28, 2020, management yelled at Complainant on the workroom floor, told Complainant to move to a different job assignment and threatened to send her home. The Agency dismissed claim 1 pursuant to 29 C.F.R. § 1614.107(a)(2). In doing so, the Agency determined that Complainant failed to bring the issues in claim 1 to the attention of an EEO counselor prior to filing her formal complaint. Noting that Complainant had previously filed a harassment complaint with the Agency in Agency No. 1B-112-0019-20, the Agency dismissed claim 2 pursuant to 29 C.F.R. § 1614.107(a)(1) on the ground that it was “identical” to the claim that was raised in Agency No. 1B-112-0019-20. The instant appeal followed. Complainant submitted a brief in support of her appeal. ANALYSIS AND FINDINGS The matter before us is whether the Agency properly dismissed claim 1 pursuant to 29 C.F.R. § 1614.107(a)(2). 29 C.F.R. § 1614.107(a)(2) states in pertinent part, that an agency shall dismiss a complaint that raises a matter that has not been brought to the attention of an EEO counselor and is not like or related to a matter on which the complainant has received counseling. The record contains an EEO Contact Summary which shows Complainant’s counseling dealt with the allegations of harassment and reassignment in claim 1. The EEO Contact Summary indicates that on August 11, 2020 at 3:36 p.m., Complainant informed her EEO counselor that her Distribution Operations Supervisor harassed her “many times,” and had previously changed her job assignment by sending her to a different location and designating a junior employee to complete her work. (1B-112-001-21, p. 48). Since complainant brought these issues at counseling on August 11, 2020, which was in advance of filing her complaint on December 29, 2020, we find that the Agency improperly dismissed claim 1. Also at issue is whether the Agency properly dismissed claim 2 on the ground that it was “identical” to the claim that Complainant raised in her prior complaint, Agency No. 1B-112- 0019-20. EEOC regulation 29 C.F.R. § 107(a)(1) requires an agency to dismiss a complaint that states the same claim that is pending or has been decided by the agency. To be dismissed as the “same claim,” the present formal complaint and prior complaint 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 Douglas R. v. United States Postal Service, EEOC Appeal No. 2019003027 (August 16, 2019). On appeal, by and through her counsel, Complainant argues that claim 2 differs from the claim that was raised in Agency No. 1B-112-0019-20, because they involve incidents of harassment by “two different supervisors . . . [at] different time[s].” According to Complainant, in Agency No. 1B-112-0019-20 her supervisor subjected her to harassment on June 7, 2020. Complainant points out that the harasser in claim 2 was a different management official, specifically the Distribution Operations Supervisor and that the Distribution Operations Supervisor harassed her in a separate 2021002583 3 incident on June 28, 2020. To substantiates her claim, Complainant submitted her informal complaint for Agency No. 1B-112-0019-20, showing the management official, time, and incident were different than in this complaint. (1B-112-001-21, pp. 37-38). Consequently, we find we find that the Agency improperly dismissed claim 2. CONCLUSION Based on a thorough review of the record and the contentions on appeal, the Agency’s dismissal of the complaint is REVERSED and REMANDED to the Agency for further processing in accordance with this decision and the Order below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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 the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 2021002583 4 The 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, the 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 the 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2021002583 5 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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. 2021002583 6 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 September 2, 2021 Date