[Redacted], Fernando K., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (USPS Field Areas and Region), Agency.

Equal Employment Opportunity Commission

Jul 12, 2021

Appeal No. 2021002808 (E.E.O.C. Jul. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Fernando K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (USPS Field Areas and Region), Agency. Appeal No. 2021002808 Agency No. 1G-325-0009-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 5, 2021, dismissing his complaint alleging 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 During the relevant period, Complainant worked as a Receiving Clerk, Foreign Air Mail at the Agency’s Miami International Service Center in Miami, Florida. On March 13, 2021, Complainant filed the instant formal complaint. Complainant claimed that the Agency subjected him to discrimination based on race, color, and in reprisal for EEO activity when: 1. on November 14, 2020, he was informed that he would no longer be paid on the clock while he attended medical appointments or therapy visits related to his on-the-job injury from 2008; 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. 2021002808 2 2. on February 20, 2021, management sent him to work in another section of his job duties rather than moving a junior employee; and 3. on February 24, 2021, a supervisor lectured him about entering the manager’s office to obtain a mask and gloves while no one was in the manager’s office. In its April 5, 2021 final decision, the Agency dismissed claim 1 for stating the same claim that was raised in a prior EEO complaint, pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the Agency found that claim 1 raises the same matter as that previously raised in Agency Case No. 1G-325-0004-21. The Agency further dismissed claims 2 and 3 for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). The instant appeal followed. ANALYSIS AND FINDINGS Same claim: Claim 1 The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of a formal complaint that states the same claims that is pending before or has been decided by the Commission or the Agency. The Commission has consistently held that in order for a 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. Department of the Air Force, EEOC Appeal No. 01955890 (April 5, 1996), rev’d on other grounds, EEOC Request No. 05960524 (April 24, 1997). Here, the Agency dismissed claim 1, determining that the matter raised therein was the same matter that was raised in a prior formal complaint (Agency No.1G-325-0004-21). In Agency No. 1G-325-0004-21, the Agency accepted Complainant’s claim that he was subjected to discrimination on the basis of race and in reprisal for prior EEO activity when: on November 13, 2020, management instructed him to request compensation through Department of Labor for his job injury medical/therapy appointment. In the instant case, Complainant raises the same claim as set forth in the instant complaint (Agency Case No. 1G-325-0004-21). The Agency properly determined that Complainant was again alleging the same claim from Agency Case No. 1G-325-0004-21. 2021002808 3 Failure to state a claim: Claims 2 and 3 The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The claim related to purported actions by management sending Complainant to work in another section of his job duties on one occasion rather than moving a junior employee (claim 2) and a supervisor lectured him about entering the manager’s office to obtain a mask and gloves while no one was in the office (claim 3). Based on examination of Complainant’s claims. Complainant does not explain how he suffered a personal loss or harm regarding a term, condition or privilege of his employment. To the extent that Complainant is claiming a discriminatory hostile work environment, we find that the event described, even if proven to be true, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of his employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally, Complainant has not shown that the alleged claim is likely to deter his or others from pursuing EEO activity. CONCLUSION The Agency’s final decision dismissing the formal complaint for the reasons discussed above is AFFIRMED. 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. 2021002808 4 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. 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 (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. 2021002808 5 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 July 12, 2021 Date