0120172602
12-20-2017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Burl M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120172602
Agency No. 4K270006717
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 20, 2017, dismissing his complaint alleging 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 worked as a City Carrier at the Agency's Win-North Point Station facility in Winston-Salem, North Carolina.
On February 20, 2017, Complainant made EEO contact. On June 3, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), disability (bi-polar disorder), age (52), and reprisal for prior protected EEO activity when:
1. on November 3, 2011, Complainant was sent for a fitness-for-duty examination (this claim was not in his complaint, but the Agency noted Complainant mentioned the claim in his July 11, 2017 affidavit);
2. on January 7, 2017, he requested sick leave, but he was charged with leave without pay (LWOP);
3. on January 30, 2017, he was put on emergency placement without explanation; and
4. during March of 2017, Complainant became aware that management was not abiding by a March 1, 2017 Step B grievance settlement decision, which was issued in favor of Complainant, and which awarded Complainant lost wages and benefits for the period January 30, 2017 through March 8, 2017.
Agency Decision
The Agency issued a final decision dismissing issue 1 for untimely EEO contact, and also for raising he same claim as that in a previously filed complaint (Agency No. 4K-270-0017-12), filed in 2011. The Agency dismissed the remaining claims, pursuant to 29 C.F.R. � 1614.107(a) (1), for failure to state a claim. Specifically, the Agency dismissed claims 2-3, finding that Complainant was attempting to revive an issue that had been decided. The Agency reasoned that his complaint was identical, to the claim raised in another previously filed complaint (Agency No. 4K-270-0044-17).2 The Agency dismissed claim 4, reasoning that he was alleging a matter that concerns the negotiated grievance procedure, which the Agency found did not state a claim within the EEOC's jurisdiction.
This appeal followed.
ANALYSIS AND FINDINGS
Initially, we note that Complainant's actual complaint did not reference the issue the Agency characterized as claim 1. Therefore, we do not need to address the timeliness of the EEO contact regarding this matter.
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disability, genetic information, or retaliation. See 29 C.F.R. 1614.103(a) and 1614.106(a).
In this case, a fair reading of the complaint in conjunction with the related EEO counseling report shows that Complainant was alleging that he had been subjected to incidents of disparate treatment based on his race (Caucasian); age, alleged disability, and prior EEO activity when his supervisor denied his sick leave request, placed him on LWOP, and put him off work on an Emergency Placement. In short, he claims that he was treated differently than others who were similarly situated but were younger, not Caucasian, and who had no known disability or prior EEO activity.
A copy of the informal complaint, dated January 31, 2017, in Agency No. 4K-270-0044-17 is in the record. It contains allegations that Complainant was threatened when he asked for training to become an EEO investigator and when, on January 7, 2017, his request for sick leave was essentially denied and he was placed on leave without pay (claim 2 of the instant matter). The related EEO counseling report also shows that Complainant raised the issue of his January 30, 2017 emergency placement off work (claim 3 of the instant matter). The informal complaint in Agency No. 4K-270-0044-17 was closed because Complainant never filed a formal complaint.
Once a complainant has effectively withdrawn an informal complaint, absent a showing of coercion, the complainant may not reactivate the EEO process by filing a formal complaint on the same issue. See Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995). Therefore, we affirm the Agency's dismissal of claims 2 and 3 for stating the same claim as that raised in Agency No. 4K-270-0044-17.
Finally, in claim 4, Complainant alleges that the Agency was motivated by discriminatory and retaliatory animus when it refused to provide him with the relief and benefits awarded him as a result of the successful grievance decision. We agree with the Agency that the proper forum to allege noncompliance with the grievance decision is in the grievance process itself and not in the EEO complaint process.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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 tends 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
December 20, 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 According to the Agency, this prior informal complaint was closed on March 2, 2017, because Complainant did not pursue a formal complaint on the matter.
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