0120172921
09-21-2018
Stella B,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Stella B,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120172921
Hearing No. 430-2017-00068X
Agency No. 4K-230-0229-16
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 27, 2017, dismissing her 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 City Letter Carrier, Q-01 at the Agency's Richmond - Regency Branch in Richmond, Virginia.
On May 5, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), disability, and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 and
Section 501 of the Rehabilitation Act of 1973 when:
1.
On or about February 12, 2016, Complainant was denied a hold down assignment on Route #9431, and
2. Since February 19, 2016, after Complainant submitted updated medical restrictions indicating that she could not drive a two-ton vehicle to perform her duties, she requested a reasonable accommodation of limited duty which was denied.
The Agency accepted the matter for investigation. Following the investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The Agency moved for dismissal of the matter indicating that Complainant had filed an appeal with the Merit Systems Protection Board (MSPB). Complainant responded indicating in great detail that the claim pending before the MSPB did not allege discriminatory factors involving the hold down assignment on route #9431. Therefore, Complainant believed that the matter should not be dismissed. The Agency provided a copy of the MSPB's Initial Decision dated June 13, 2017. The decision by the MSPB Administrative Judge found that Complainant failed to show that she was denied restoration when she was not placed in Route #9431. In addition, the MSPB Initial Decision addressed Complainant's claim pertaining to denial of an assignment following her submission of additional medical restrictions involving driving a two-ton vehicle. As such, the AJ dismissed the matter pursuant to Commission's regulations finding that the matter was already decided by the MSPB.
The Agency implemented the AJ's dismissal. Complainant appealed asserting that the AJ and the Agency failed to address her claims of discrimination which were not alleged with the MSPB. The Agency asked that the Commission reject Complainant's claims and affirm its decision.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R.� 1614.107(a)(4) provides an agency shall dismiss a complaint where a complainant has raised the matter in a negotiated grievance procedure that permits allegations of discrimination or in an appeal to the MSPB and 1614.301 or � 1614.302 indicates that the complainant has elected to pursue the non-EEO process.
We reject the argument raised by Complainant on appeal. Although Complainant argues that she did not raise a discrimination claim as part of her MSPB appeal, we determine that she could have done so. See Kidd v. Dep't of the Navy, EEOC Appeal No. 0120121751 (June 28, 2012) (affirming the dismissal of complaint pursuant to 29 C.F.R.� 1614.107(a)(4) where Complainant failed to allege discrimination before the MSPB on the same matter). As such, we conclude the AJ properly determined that Complainant's claims regarding Route #9431 and the Agency's failure to provide her with an assignment following the submission of additional medical documentation were addressed by the MSPB. Therefore, the AJ's dismissal of the matter pursuant to 29 C.F.R.� 1614.107(a)(4) is appropriate.
CONCLUSION
The Agency's final decision implementing the AJ's decision dismissing Complainant's formal complaint for the reason stated herein 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.
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. 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
September 21, 2018
__________________
Date
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.
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