[Redacted], Shad R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Aug 30, 2021

Appeal No. 2021002709 (E.E.O.C. Aug. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shad R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021002709 Agency No. 4G-700-005321 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 9, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Motor Vehicle Operator at the Agency’s New Orleans Processing and Distribution Center in New Orleans, Louisiana. Complaint sought EEO counseling on December 18, 2020. During EEO counseling, Complainant alleged discrimination based on race and disability when, on March 1, 2000, he was allotted $299 per month in retirement pay from the Office of Personnel Management. Complainant also alleged he was wrongfully removed from the Postal Service. (Complaint File, pp. 212-214). No resolution was reached, and Complainant was issued a Notice of Right to File which referenced Complainant’s March 1, 2000 retirement. (Complaint File, pp. 224-230). 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. 2021002709 2 On February 12, 2021, Complainant timely filed a formal complaint alleging discrimination based on race, color and disability when, on the date of the arbitration, Complainant was told by another employee that the employee lived around all white people and he knew Complainant had the best work record and that the employee should not have Complainant removed, but he was going to do it anyway. (Complaint File, p. 128). Complainant further indicated that the time limit should be waived due to Complainant’s mental incompetency. (Complaint File, p. 129). In its Final Agency Decision, the Agency characterized this complaint as alleging that the Agency subjected Complainant to discrimination on the bases of race (Not Specified), color (Black), and disability when, on August 14, 1999, he was terminated from the Postal Service. The Agency dismissed this claim pursuant to 29 C.F.R. § 1614.107(a)(1) as stating the same claim that is pending before or has been decided by the Agency or the Commission. Complainant filed the instant appeal. On appeal, Complainant contends he meets the criteria for waiver of the time limit. (Complaint File, p. 4). The Agency did not file an appellate brief. ANALYSIS AND FINDINGS 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 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 and prior complaints must have involved identical matters. It has long been established that “identical” does not mean “similar.” 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. U.S. Postal Serv., EEOC Appeal No. 01955890 (April 5, 1996), rev'd on other grounds, EEOC Request No. 05960524 (April 24, 1997). However, new evidence does not convert previous allegations into a new claim, Gantt v. Dep’t of Veterans Affairs, EEOC Request No. 0120072183 (April 22, 2007). Neither does finding a new comparator employee or arguing a different theory of law. Doleshal v. HHS, EEOC Appeal No. 01A40020 (July 29, 2004) (finding the complainant's non-promotion claim, which was decided in a previous complaint, failed to state a claim, even though he raised his new complaint under the EPA and offered another comparator). Complainant’s prior EEO complaint (Agency No. 1G-701-0076-00/EEOC Appeal No. 01A13740), alleged discrimination when, on August 9, 1999, Complainant was issued a letter of decision removing him from the Agency for being absent without official leave. This complaint was dismissed by the Agency for untimely EEO counselor contact, and the Commission upheld this dismissal on appeal. (Complaint File, pp. 232-233). 2021002709 3 In the current action, Complainant contacted an EEO counselor to raise the issue of retirement pay that he felt was discriminatory, as well as wrongful removal. In the formal complaint, Complainant stated he was discriminated against, when on the date of arbitration for his removal, an employee “said that he live[sic] around all white people and he said I know you have the best work record here. I know that I should not have you remove[sic] but I’m doing it anyway.” (Complaint File, p. 128). Although Complainant alleges this is a new claim, it is only more evidence in support of Complainant’s earlier allegations that he was wrongly removed. This is made clear by the remedies sought in the current complaint, which include 21 years of back pay. Complainant cannot use the filing of a new complaint to circumvent a prior dismissal regarding the exact same removal action. Additionally, while the Commission is sympathetic to Complainant’s stated competency issues, timeliness is not at issue in this decision. The Agency properly dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) as stating the same claim that is pending before or has been decided by the Agency or the Commission. CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons discussed above. 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 2021002709 4 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. The court has the sole discretion to grant or deny these types of requests. 2021002709 5 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 August 30, 2021 Date