0120151093
05-07-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southeast Area), Agency.
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120151093
Agency No. 4G335001515
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 29, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier at the Agency's Post Office in Naples, Florida.
On December 10, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal when: (1) on June 19 and 24, 2014, and July 3, 2014, management sent several emails stating that Complainant's route was highest in the nation for being over the allotted delivery hours and he was instructed to use leave; (2) in August 2013, the postmaster went to his home and accused him and his physician of fraud; (3) on an unspecified date, the postmaster made a motion sliding his finger across his throat as Complainant's back was turned; and (4) on an unspecified date, the postmaster waved and smiled at Complainant when he passed Complainant on his route.
The Agency dismissed all of the claims for having been previously raised in other EEO complaints, and also dismissed claim 1 for being untimely raised with an EEO counselor as Complainant sought EEO counseling on October 28, 2014. The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that an agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. The Commission has consistently held that in order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Dep't of the Air Force, EEOC Appeal No 01955890 (April 5, 1996), rev'd on other grounds, EEOC Request No. 05960524 (April 24, 1997).
In prior complaint Agency No. 4G-335-0157, Complainant specifically raised a claim regarding emails being sent regarding his route being "#1 in the nation for being over allotted time to deliver." Additionally Complainant mentioned the postmaster waving and smiling at him while Complainant was on his route. In prior complaint Agency No. 4G-335-0208-13 Complainant references the postmaster "showing up at [his] private residence accusing [his] physician and [him] of fraud." In prior complaint Agency No. 4G-335-0097-14, Complainant mentions that the postmaster "took his finger sliding it across his throat."
We find that the claims raised in the instant complaint are identical to those Complainant already raised in his earlier complaints as noted above.
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
May 7, 2015
__________________
Date
2
0120151093
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120151093