0120172212
09-14-2014
Isaiah P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Isaiah P.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120172212
Agency No. 4F913004017
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 9, 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. 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 employee at the Agency's USPS facility in Van Nuys, California.
On May 5, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of religion (Jewish), age (69) and reprisal, when:
1. On January 10, 2001, Complainant was sent for a fitness for duty examination;
2. On or around April 30, 2002, he was issued a Proposed Removal for which he received a Letter of Decision on or around June 28, 2002; and
3. Management refused to reinstate him in 2014 due to criminal activity (fraud and collusion).
The Agency dismissed the complaint for failure to state a claim. The Agency mistakenly referred to the claim as alleging discrimination based on race (Hispanic), but his claims pertain to alleged discrimination based on religion, age and retaliation. The Agency reasoned that, although Complainant listed December 26, 2017, as the date of the alleged incident, that date did not appear to have any basis, and was never mentioned during the informal process or in any of the pre-complaint documentation. The Agency found that the complaint should be dismissed because Complainant was raising the same claim that he filed in 2015, and which was the subject of a decision dated September 25, 2015, affirming the dismissal and the February 3, 2017, Denial of his Request for Reconsideration in EEOC Request No. 0520160012.
CONTENTIONS ON APPEAL
Complainant argues that the Postal Service "employees created their own case and did not rule on what had been presented to them." He says that his termination was based on fraud and is unlawful. He says on page 2 of the decision, Exhibit 1 that the Agency erroneously failed to specify the gender. He disputes the claim was the same as previously submitted. He stated, in his latest EEO filing, he is alleging that the named Postmaster and the name Chief Counsel engaged in criminal conduct in the discharge and he is now requesting reinstatement, based on United States Supreme Court precedent. He says that he submitted a large file titled "Fraud in my Termination" in support. He is alleging "Fraud Plain and Simple" and Collusion. He argues that "the discrimination in this matter pertains to [his] not being reinstated as required by law and it is because [the named officials] want to perpetuate the discriminatory intent and because of his age."
ANALYSIS AND FINDINGS
To the extent that he is alleging criminal activity, that is beyond the scope of EEOC's authority. The Commission finds that the complaint fails to state a claim under the EEOC regulations because Complainant failed to show that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy under the laws that we enforce. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). In this case, Complainant acknowledged that we have entered prior decisions on his EEO claims. He now states that he is making a new, different argument, which is that he was denied reinstatement based on unlawful criminal activity in the form of fraud. With regard to the prior EEO claims, we note that there have been multiple prior decisions which form the law of this case. We discern no reason to revisit those decisions.
Upon review, therefore, we find that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a) (1) for failure to state a claim.
CONCLUSION
The Agency's dismissal 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
September 14, 2014
__________________
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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