Homer B,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionDec 5, 2017
0120180011 (E.E.O.C. Dec. 5, 2017)

0120180011

12-05-2017

Homer B,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.


U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

Homer B,1

Complainant,

v.

Megan J. Brennan,

Postmaster General,

United States Postal Service

(Great Lakes Area),

Agency.

Appeal No. 0120180011

Agency No. 4J-630-0074-17

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 13, 2017, 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 Postmaster at the Agency's Post Office facility in Hazelwood, Missouri. The record indicated that on August 5, 2016, Complainant was issued a Letter of Decision, upholding the July 5, 2016, Notice of Proposed Adverse Action - Removal. Complainant filed an appeal with the Merit Systems Protection Board (MSPB) which was resolved by a settlement agreement signed on January 5, 2017. The settlement agreement provided that the Agency will reduce the August 5, 2016 Letter of Decision implementing the July 5, 2016 Notice of Proposed Adverse Action - Removal, to a demotion to Full Time Regular City Carrier.

Complainant indicated that he became aware that a manager had been treated differently than him regarding the Notice of Proposed Removal. Complainant believed that he was treated differently because of race. As such, on May 19, 2017, Complainant contacted the EEO Counselor alleging discrimination. On August 21, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (African-American) when: Complainant was given a Notice of Removal in July 2016 and removed in August 2016. Complainant asserted that another manager had engaged in inappropriate actions in February 2017 who could remain in pay status. As such, he asserted that he had to suffer through six months without pay while the comparator continued to receive pay.

The Agency dismissed the complaint pursuant to 29 C.F.R.� 1614.107(a)(4). The Agency noted that Complainant filed an appeal with the MSPB raising the August 5, 2016 Letter of Decision, upholding the July 5, 2016, Notice of Proposed Adverse Action - Removal. The Agency indicated that the parties entered into a settlement agreement dated January 5, 2017, resolving the MPSB appeal. The Agency provided a copy of the settlement agreement which stated that the agreement resolved any "cause of action which may have arisen against the Postmaster General or the [Agency] as of the date all parties have signed this Agreement, including but not limited to claims for discrimination based on race, color, sex, pregnancy, national origin, age, disability, or genetic information...." Therefore, the Agency held that Complainant had alleged discrimination with respect to the removal action with the MSPB and dismissed the matter in accordance with 29 C.F.R.� 1614.107(a)(4).

Complainant appealed asserting that his claim has nothing to do with the MSBP outcome. He argued that he was not paid following the removal action while a comparator was permitted to be paid. Further, he asserted that he was demoted to a level 1 while the comparator was demoted to a level 17. Complainant argued that he should have been reimbursed for the loss of six months of pay and leave. The Agency asked that the Commission affirm its dismissal of the complaint.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R.� 1614.107(a)(4) provides an agency shall dismiss a complaint where a complainant has raised the matter in a negotiated grievance procedure that permits allegations of discrimination or in an appeal to the MSPB and 1614.301 or � 1614.302 indicates that the complainant has elected to pursue the non-EEO process.

Here, Complainant alleged that he was treated differently than a comparator employee who was also issued a Notice of Removal. However, the comparator was permitted to receive pay while Complainant was not. In addition, Complainant argued that the comparator was demoted to a level 17 while Complainant was demoted to a level 1. Despite Complainant's arguments, the crux of his complaint is that he was treated differently regarding the Agency's implementation of the removal action issued on August 5, 2016. Complainant has already challenged this removal action in an appeal with the MSPB which was resolved by settlement agreement signed by Complainant on January 5, 2017. As such, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R.� 1614.107(a)(4) is appropriate.

CONCLUSION

The Agency's final decision dismissing Complainant's formal complaint for the reason stated herein is AFFIRMED.

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 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. 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 5, 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.

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