[Redacted], Ryan L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.Download PDFEqual Employment Opportunity CommissionDec 2, 2021Appeal No. 2021004820 (E.E.O.C. Dec. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ryan L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021004820 Agency No. 4E-945-0038-21 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated July 28, 2021, 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Full-time Regular City Carrier at the Agency’s Piedmont Post Office in Oakland, California. On April 29, 2021, Complainant contacted an EEO counselor. Thereafter, on July 7, 2021, he filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), color (Black), and disability (unspecified) when: 1. Beginning on January 25, 2021, through February 9, 2021, he was placed on Emergency Placement; 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. 2021004820 2 2. On March 19, 2021, he was issued a Notice of Proposed Removal for Unacceptable Conduct which was subsequently reduced to a letter of warning. On July 28, 2021, the Agency issued a decision dismissing the complaint for stating the same claim as set forth in an earlier complaint already decided by the Agency, pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the Agency found that the instant complaint concerned the same incidents which had been raised in Agency Case # 4F-945-0041-21, which was resolved through a settlement. The Agency also dismissed claim 1 for untimely EEO counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Complainant did not submit any contentions or arguments on appeal. In response, the Agency reiterated the reasoning set forth in its decision. ANALYSIS AND FINDINGS The Agency dismissed the complaint for stating the same claims raised in an earlier complaint filed with the Agency. 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. To be dismissed as the “same claim,” the present formal complaint and prior complaint must involve identical matters. 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 Battle v. Dep’t of Transportation, EEOC Request No. 05A20049 (Sept. 26, 2003). The instant record indicates that in Agency #4F-945-0041-21, Complainant alleged he was discriminated against on January 25, 2021, when he was put on emergency placement. That complaint was resolved through a settlement agreement executed on April 27, 2021, which reduced a March 17, 2021 notice of proposed removal to a letter of warning. We find that the instant complaint states the same matters as raised in Complainant’s earlier, resolved EEO complaint. In particular, Complainant’s emergency placement (claim 1) and the later reduction of his notice of removal to a letter of warning (claim 2), were the subject of the prior complaint and its resolution. We therefore find the Agency properly dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1). To the extent that Complainant is alleging discrimination regarding the mediation or settlement agreement, his claim is an inappropriate collateral attack on the mediation process. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See, e.g., Oliver v. U. S. Postal Service, EEOC Appeal No. 01A14752 (Oct. 3, 2001) (dismissing, for failure to state a claim, a complaint containing claims arising out of mediation negotiations between the parties); and Nelson v. Dep’t of Defense, EEOC Appeal No. 01A13907 (Sept. 25, 2001) (noting that “comments and actions 2021004820 3 made during a mediation session [are] akin to actions during a settlement negotiation, which we have held fail to state a claim”). In light of our disposition, we shall not consider whether claim 1 was also properly dismissed on alternative grounds. CONCLUSION The Agency’s decision dismissing the complaint is hereby 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. 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). 2021004820 4 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. 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 December 2, 2021 Date Copy with citationCopy as parenthetical citation