Romeo K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Apr 5, 2018

0120170718 (E.E.O.C. Apr. 5, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Romeo K.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.

Appeal No. 0120170718

Agency No. 6H-000-0010-16

DECISION

Upon review, the Equal Employment Opportunity Commission (EEOC or Commission) finds
that the Agency’s final decision dated November 2, 2016, properly dismissed Complainant’s
complaint. Initially, we note that although the Agency dismissed the complaint due to untimely
EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2), we find that it is properly
dismissed for stating the same claim that has been decided by the Agency pursuant to 29 C.F.R.
§ 1614.107(a)(1). We will thus analyze the case accordingly.

At the time of events giving rise to this complaint, Complainant was a former Senior Forensic
Computer Analyst, Senior, ISLE-14, at the Agency’s National Forensics Laboratory, Virginia.
The record indicates that on August 27, 2016, Complainant contacted an EEO Counselor
regarding his complaint. On October 11, 2016, Complainant filed his complaint alleging
discrimination in reprisal for prior EEO activity when on November 14, 2013, he was rated as a
non-contributor in the FY 2013 Pay for Performance ratings.2 Complainant indicated that he
should have been rated as a contributor.

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 We note that the Agency in its final decision made a typographical error by indicating that the
incident involved the FY 2014 rating. Complainant clearly indicated that his complaint involved
the FY 2013 rating.
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We note that Complainant formerly worked as a Senior Forensic Computer Analyst, Senior,
ISLE-14, at the Agency’s National Forensics Laboratory, Virginia, until he was removed from
his employment at the Agency on June 17, 2015. Complainant’s removal is not at issue.
Complainant indicated that on July 16, 2015, he filed an appeal to Merit Systems Protection
Board (MSPB) concerning his removal. On July 13, 2016, the MSPB dismissed the appeal for
lack of jurisdiction. In that decision, stated Complainant, the MSPB identified him as an EAS-
24, instead of an ISLE-14. Complainant indicated that as an EAS-24 employee, he was part of a
“global override” in accordance with the Inspection Service National Communication dated
February 24, 2014, and his FY 2013 Pay for Performance rating should have been adjusted from
the “non-contributor” rating to a “contributor” rating. The Agency’s Human Resources (HR)
indicated that the MSPB merely indicated Complainant as an EAS-24, a designation code in his
“PS Form 50,” which was not an indication of his actual pay structure or rating system. HR
stated that Complainant was an ISLE employee and his merit evaluation rating was based on the
ISLE merit evaluation process.

After a review of the record, it appears that Complainant is challenging his “unsuccessful” FY
2013 rating of which he was issued on November 14, 2013. Complainant acknowledged that he
has been challenging the subject rating ever since he received it. Our records indicate that on
October 31, 2013, Complainant filed his complaint, Agency No. 6H-000-0007-13, regarding the
same FY 2013 rating, as well as his other related performance issues, of which an Equal
Employment Opportunity Commission Administrative Judge (AJ) found no discrimination. On
July 14, 2016, the Agency issued its final order implementing the AJ’s decision. Complainant
appealed the Agency’s final order and the appeal is pending in our office under EEOC Appeal
No. 0120162627.

Based on the foregoing, we find that the instant complaint states the same claim, i.e.,
Complainant’s FY 2013 rating, that had been decided by the Agency in its final order on July 14,
2016. Thus, we find that the Agency’s decision to dismiss the complaint was proper. 29 C.F.R.
§ 1614.107(a)(1). It is noted that Complainant obtaining new evidence which may or may not
support his claim does not constitute a new separate claim.

Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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.
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Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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.

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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

April 5, 2018
Date