0120132102
09-06-2013
Valentin L. Estrada, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Valentin L. Estrada,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120132102
Agency No. 4G780007712
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated May 8, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former Supervisor, Customer Services at the Agency's Coronado Station in El Paso, Texas.
On May 17, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of age (58) and reprisal when in December 2011 and February 2012, he learned that supervisors and/or an acting supervisor committed the same or similar infractions as he did and were not terminated from the Agency as he was in June 2008.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for raising the same claims in earlier complaints. The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission.
Information in the record indicates that Complainant filed a mixed complaint regarding his removal. The Agency found no discrimination and he appealed the matter to the Merit Systems Protection Board.(MSPB). The MSPB upheld Complainant's removal. On December 24, 2009, Complainant filed another complaint regarding his removal. The Agency dismissed the complaint for raising the same matter in his earlier complaint. Complainant appealed the dismissal, and it was addressed in Appeal No. 0120101552 (March 15, 2011). That decision upheld the dismissal. Another complaint was filed on September 3, 2010, again raising allegations that a co-worker received a lesser discipline than Complainant. It was dismissed and Complainant did not appeal to the Commission. This is Complainant's fourth complaint concerning his removal.
We find that Complainant's appeal is barred by the doctrine of res judicata. The MSPB has addressed Complainant's removal. Nonetheless, Complainant continues to file complaints when he finds someone was disciplined differently than he. We previously addressed such matters in Appeal No. 0120101552. The instant complaint is no different. The discovery of a new comparator does not give rise to a new complaint.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 6, 2013
__________________
Date
2
0120132102
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132102