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

Equal Employment Opportunity Commission

Jul 19, 2021

Appeal No. 2021002266 (E.E.O.C. Jul. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Valentin G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021002266 Agency No. 4C-150-0001-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated January 28, 2021, dismissing a formal complaint alleging unlawful employment discrimination, in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked for the Agency as an Operations Program Specialist in Pittsburgh, Pennsylvania. On January 5, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on age. On January 28, 2021, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following claim: On or around February 24, 2020, [Complainant] requested a reasonable accommodation of being transferred to another facility and [his] request was not granted until on or around August 2020. 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. 2 2021002266 The Agency dismissed Complainant’s complaint on the grounds that Complainant previously raised this matter in a prior complaint. Specifically, the Agency reasoned that the instant claim was the same claim Complainant raised in Agency Case No. 4C-150-0017-20, which was accepted for investigation. In its final decision, the Agency also stated that Complainant previously raised other matters (back pay issue per MSPB litigation, derogatory social media comments, leave buy back and forged documents) during EEO Counseling. The Agency found, however, that Complainant did not raise these matters in his formal complaint. Thus, the Agency found that Complainant abandoned these other claims. On appeal, Complainant, through his attorney, asserts that the Agency’s final decision dismissing his complaint is improper. Specifically, Complainant asserts that he raised other matters during EEO Counseling which should be considered by the Agency. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or the Commission. We find the Agency properly dismissed the instant complaint. The record contains a copy of the formal complaint for the instant matter. Therein, the formal complaint, in Section 16, refers to “Exhibit 2” for the actions which Complainant alleges are discriminatory. Exhibit 2 reflects that Complainant alleged discrimination when he was denied/delayed a reasonable accommodation when he requested relocation to a different facility. The record contains a copy of a partial acceptance letter dated March 11, 2020 for Complainant’s prior EEO complaint, Agency Case No. 4C-150-0017-20. Therein, the Agency accepted for investigation for Agency Case No. 4C-150-0017-20 the same claim at issue in the instant matter (denial/delay in providing a reasonable accommodation-relocation to a different facility). Commission records also reflect that Agency Case No. 4C-150-0017-20 is currently pending before an EEOC Administrative Judge (AJ), EEOC Hearing No. 531-2020-00397X, and encompasses the same claim at issue in the instant matter. Moreover, we concur with the Agency that while Complainant raised other matters during the informal processing of his complaint (EEO counseling), he did not raise these matters in his formal complaint.2 2 Section 16 of the formal complaint form requests a complainant to “explain the specific action(s) or situation(s) that resulted in [complainant] alleging that [he/she was] discriminated against…” (emphasis added). In addition, the Notice of Right to File letter dated January 1, 2021 informed Complainant that “[t]he complaint must be specific.” 3 2021002266 The Commission has held that where a complaint raises a matter during counseling but does not include that issue in the formal complaint, he/she cannot resurrect it later during the processing of the complaint. See Small v. U.S. Postal Serv., EEOC Request No. 05980289 (July 16, 1999). Accordingly, we AFFIRM the Agency’s final decision dismissing the formal complaint for the reason 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 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. 4 2021002266 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 July 19, 2021 Date