[Redacted], Kenneth M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Feb 16, 2022

Appeal No. 2021002259 (E.E.O.C. Feb. 16, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Roxane C.,1 Complainant, v. Chad Wolf, Secretary, Department of Homeland Security (Customs and Border Protection), Agency. Appeal No. 202004009 Agency No. HS-CBP-00194-2020 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated June 11, 2020, dismissing a formal 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.; Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.; the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.; and Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), 42 U.S.C. § 2000ff et seq. In accordance with 29 C.F.R. § 1614.405, the Commission accepts the appeal. BACKGROUND During the relevant time, Complainant worked as a Management Program Specialist for the Agency’s facility at the Miami Seaport, in Miami, Florida. On November 14, 2019, Complainant filed a formal EEO complaint based on race (Black), color (brown), religion (unspecified), national origin (U.S.A), sex (female), age, disability, genetic information, parental status, and in reprisal for prior protected EEO activity. 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. 2020004009 2 The Agency framed the claims as follows: 1. from January 31, 2003 through September 15, 2004, Complainant was subjected to harassment, culminating in her removal from her position as a Management Program Specialist; and, 2. on or about October 28, 2019, Complainant was dissatisfied with the information relayed by the EEO Counselor. In its June 11, 2020 decision, the Agency dismissed the formal complaint on numerous grounds. First, the Agency reasoned that Complainant had several prior EEO complaints alleging harassment leading to her removal in September 2004.2 Therefore, it dismissed the complaint pursuant to 29 § C.F.R. 1614.107(a)(1). Next, citing a civil action filed in the U.S. District Court for the Northern District of Florida (Case No. 4:17-cv-00204-MW-CAS), the Agency dismissed the formal complaint for raising the same claims. Additionally, the Agency found that in October 2004, Complainant appealed her removal to the Merit Systems Protection Board (MSPB) and noted that she had been constantly been harassed. Therefore, the Agency determined that under 29 C.F.R. 1614.107(a)(4), dismissal was also appropriate. In describing the procedural history of Complainant’s MSPB appeal, the Agency noted the U.S. Court of Appeals, Federal Circuit, observed that Complainant had filed a dozen appeals regarding her September 2004 removal. Finally, the Agency dismissed claim (2) pursuant to 29 C.F.R. 1614.107(a)(8) Complainant filed the instant appeal. ANALYSIS AND FINDINGS In claim (1), Complainant alleges that, from January 2003 through September 15, 2004, she was subjected to harassment that culminated in her removal. 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. A review of Commission records reflects that Complainant has repeatedly raised these matters in earlier EEO complaints. Most recently, we affirmed the Agency’s dismissal of a prior EEO complaint regarding her termination by noting that “the record demonstrates that Complainant initiated a civil complaint regarding her 2014 termination.” See Complainant v Department of Homeland Security, EEOC Appeal No. 0120162189 (Sept. 2, 2016). 2 Specifically, the Agency identified: Case No. 03-2276T, filed on March 19, 2003; Case No. 03- 232C/04-4042, filed on November 4, 2003; Case No. HS-CBP-01572-2014, filed on August 22, 2014; and Case No. HS-CBP-25703-2016, filed on March 18, 2016. 2020004009 3 Additionally, the Commission noted that both the Agency’s decision and Complainant’s brief have detailed the history of various cases Complainant has brought with respect to her 2004 removal. See id. Therefore, Complainant is barred from raising the same matter in the instant case. In claim (2), Complainant presents concerns and problems she encountered with the EEO Counselor on October 28, 2019. Specifically, according to the final action, Complainant asserted that the EEO Counselor complained about her filing another EEO complaint, failed to offer mediation, and told her she had exhausted all of her appeals. Although the Agency dismissed the complaint pursuant to 29 C.F.R. 1614.107(a)(8), wherein the dissatisfaction with the processing of a previously filed complaint are alleged, we find that the matter is more appropriately dismissed for failure to state a claim. 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. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The Counselor correctly explained that Complainant’s removal was already addressed by the EEO process. Mediation, while encouraged, is not always appropriate in every case. While purported complaints by the Counselor may not be professional, the instant appeal reflects that Complainant was not prevented from filing the instant complaint. Therefore, find that Complainant has not alleged a personal loss or harm to a term, condition, or privilege of her employment. Complainant was not rendered an “aggrieved” employee by the information given to her by the EEO Counselor on October 28, 2019. CONCLUSION The Agency’s final decision dismissing the formal complaint for the reasons discussed above is AFFIRMED. 2020004009 4 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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). 2020004009 5 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 October 6, 2020 Date