[Redacted], Malorie D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2021002336 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Malorie D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021002336 Agency No. 4C-080-0147-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated January 25, 2021, dismissing a formal 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 period at issue, Complainant worked as a Postmaster at the Agency’s Asbury Park Post Office in Asbury Park, New Jersey. On December 27, 2020, Complainant filed a formal EEO complaint alleging the Agency subjected her to discrimination based on race, sex, and in reprisal for prior EEO activity when, in September 2020, she was subjected to harassment and disparate treatment when she was demoted. The Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for stating the same claim that was raised in a prior EEO complaint. Specifically, the Agency found that the instant complaint raises the same matters as previously raised in Agency No. 4C-080-0032-20. 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. 2021002077 2 The instant appeal followed. ANALYSIS AND FINDINGS 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 the formal complaint, determining that it raised the same matters that were raised in a prior formal complaint (Agency No. 4C-080-0032-20). On September 8, 2020, in Agency No. 4C-080-0032-20, the Agency accepted Complainant’s claim that she was subjected to discrimination on the basis of reprisal for prior EEO activity when:2 1. on or around July 11, 2019, Complainant was issued a Notice of Proposed Reduction in Grade and/or Pay; 2. on February 13, 2020, Complainant was instructed to report to the Trenton Main Window Unit to clean offices and the storage supply room as well as organize the facility; 3. on February 28, 2020, Complainant received a Letter of Decision - Reduction in Grade and/or Pay upholding the Notice of Proposed Reduction (demotion) dated July 11, 2019. We concur with the Agency that, in the instant complaint, Complainant is essentially still challenging the demotion she raised in her prior EEO complaint. We acknowledge Complainant asserts her claim occurred in September 2020, later than the February 2020 demotion identified in the prior complaint. However, a fair reading of the formal complaint reflects that Complainant is still focusing and expanding upon the demotion action identified in the prior complaint. In fact, in a January 21, 2021 email to the EEO counselor in the instant complaint, Complainant conceded that her current complaint is “alike, similar and related” to her prior complaint. In sum, we conclude the current complaint essentially states the same claim as Complainant’s prior complaint and was properly dismissed. CONCLUSION The Agency’s final decision dismissing the formal complaint for the reason discussed above is AFFIRMED. 2 For ease of reference, we have re-numbered Complainant’s claims in the prior complaint, as claims 1-3. 2021002077 3 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. 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). 2021002077 4 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 June 7, 2021 Date