Tod S.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 22, 20160120141287 (E.E.O.C. Sep. 22, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tod S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120141287 Agency No. 4G-320-0178-13 DECISION Complainant filed an appeal with this Commission from the Agency's final decision dated January 10, 2014, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. §621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision dismissing the complaint. BACKGROUND On December 13, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), color (white), and age when: On August 13, 2013, Complainant learned that a postmaster who was caught engaging in inappropriate sexual conduct was allowed to retire while Complainant was removed in June 2012, after he was charged with inappropriate sexual conduct in January 2011. The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(4), on the grounds that Complainant had already raised the matter in an appeal to the Merit Systems 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. 0120141287 2 Protection Board (MSPB). The Agency noted that Complainant filed an appeal with the MSPB concerning his removal from the Agency after the sexual misconduct which caused his June 2012 removal. The Agency noted that in June 2012, Complainant filed an MSPB appeal on the Agency’s decision to remove him from employment. The Agency noted a hearing was held in Pensacola, Florida on July 17-18, 2012, and the Agency’s actions were affirmed by an MSPB Administrative Judge (AJ). Thus, the Agency determined Complainant elected to pursue this matter with an MSPB appeal before filing a formal complaint of discrimination, and thus, elected to proceed in that forum. Alternatively, the Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. §1614.107(a)(2), for untimely EEO Counselor contact. The Agency stated Complainant did not contact an EEO Counselor until August 30, 2012, which was approximately 12 months after he was removed from the Agency. On appeal, Complainant claims that he was still on the Agency’s active rolls as of August 30, 2013. He stated that it was not until November 5, 2013, that he was notified in writing of his separation from the Agency, which he stated was processed on October 24, 2013. Additionally, Complainant claims the issue raised in his EEO complaint occurred on July 31, 2013, and did not occur during the timeframe of the MSPB hearing. Rather, Complainant explains that he filed his EEO complaint after gaining knowledge that the Pensacola Postmaster and his Confidential Secretary had been observed in the act of inappropriate sexual behavior on July 31, 2013. Complainant claims the Pensacola Postmaster and his Confidential Secretary were permitted to remain on paid leave and subsequently permitted to retire, while he was not given this opportunity. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(4) provides for an agency dismissal of a formal complaint where a complainant has raised the matter in an appeal to the MSPB. Upon review, the record shows that Complainant’s MSPB appeal and the subsequently filed present formal complaint address the same matter. Specifically, in the present EEO complaint Complainant challenged his June 2012 removal from the Agency which he claims was not effective until October 24, 2013. The record reveals that the June 2012 removal was previously raised and adjudicated by the MSPB. MSPB Docket No. AT-0752-12-0618-I-2 (August 1, 2014). Based on our decision affirming the Agency’s dismissal for raising the same matter in an appeal to the MSPB, we find it unnecessary to address the alternative dismissal grounds. CONCLUSION Accordingly, the Agency’s final decision dismissing Complainant’s complaint is AFFIRMED. 0120141287 3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 or within twenty (20) calendar days of receipt of another party’s timely request for reconsideration. 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. The requests 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 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. 0120141287 4 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 22, 2016 Date Copy with citationCopy as parenthetical citation