0120152837
05-09-2017
Rosamaria F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Rosamaria F.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120152837
Agency No. 1E-982-0006-15
DECISION
On August 21, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated July 29, 2015, dismissing her Complaint 2 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.
BACKGROUND
At the time of events giving rise to Complaint 2, Complainant worked as a Parcel Post Distribution Machine Clerk, PS-6 at the Agency's Seattle Network Distribution Center in Federal Way, Washington.
On February 24, 2014, Complainant filed Complaint 1 (1E-982-0003-14), as amended. One issue accepted for investigation (numbered by the Agency as issue 4) was whether Complainant was discriminated against based on retaliation for prior equal employment opportunity (EEO) activity when, since May 14, 2014 and ongoing, the Manager of Distribution Operations, her second line supervisor (S2) stopped scheduling her for relief Mail Flow Controller (MFC) training.
In her July 2014, investigative affidavit for Complaint 1, Complainant stated the training started in April 2014, and she believed it stopped because she would not withdraw her EEO case. She represented that Comparative Employee 1 was scheduled for MFC training and her training was not stopped. ROI for Complaint 1, at 112 - 113.
In November 2014, the Agency issued a FAD on Complaint 1 finding no discrimination, which Complainant appealed to this office. The appeal, docketed as EEOC Appeal No. 0120150655, is still pending. On appeal from Complaint 1, Complainant asserted that she had become aware of two additional comparators allowed to continue MFC training (Comparative Employees 2 and 3).
On February 3, 2015, Complainant filed Complaint 2, alleging that the Agency discriminated against her based on her sex (female) and reprisal for prior EEO activity under Title VII when S2 cancelled her relief MFC training in May 2014, after it was halfway done.2 It is this complaint that is at issue in the instant appeal.
Following an investigation on Complaint 2, the Agency provided Complainant with the ROI and notified her of her right to request a hearing before an Administrative Judge appointed by the EEOC, or a final decision without a hearing. After receiving no reply, the Agency issued a FAD without a hearing.
The Agency dismissed Complaint 2 for stating the same claim that was decided by it in Complaint 1 and is pending before the Commission in EEOC Appeal No. 0120150655. Citing EEOC caselaw, the Agency found that in Complaint 2 Complainant is merely adding additional comparator information to support Complaint 1, which does not state a new claim. The Agency also found no discrimination on Complaint 2, which we characterize as an alternative finding.
The instant appeal followed. On appeal, Complainant argues the merits of her complaint, and contends that the discrimination continues.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) requires an agency to dismiss an entire complaint that or states the same claim that is pending before or has been decided by the agency or Commission.
Both issue 4 of Complaint 1, and Complaint 2 regard the identical matter - S2 cancelling Complainant's MFC training in May 2014. Complainant's discovery of new comparative employees whom she contends were treated favorably does not state a new claim of discrimination. Mull v. United States Postal Service, EEOC Request No. 0520130184 (May 24, 2013).
Accordingly, the portion of the FAD dismissing Complaint 2 pursuant to 29 C.F.R. � 1614.107(a)(1) is AFFIRMED. As such, we have no reason to review the Agency's alternative finding of no discrimination on the merits of Complaint 2.
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.
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
May 9, 2017
__________________
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.
2 The Agency incorrectly defined the complaint as the cancellation occurring on October 15, 2014. In Complaint 2, Complainant explicitly wrote that her training was cancelled in May 2014. On appeal, through a representative, Complainant writes that there appears to be some confusion on when her training stopped. She writes it stopped in May 2014. She explains that she identified October 15, 2014, as the date the discrimination occurred because this was when she learned Comparative Employee 3 was being used in the MFC room. In her investigative affidavit, Complainant wrote that in July 2014, S2 started using Comparative Employee 2 as relief in the MFC, and in September 2014, he started using Comparative Employee 3 there. ROI on Complaint 2, at 39.
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