0120103500
02-04-2011
Kevin W. Johnson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Kevin W. Johnson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120103500
Agency No. 4G-770-0174-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated July 30, 2010, dismissing Complainant's 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
In his complaint, Complainant alleged that the Agency subjected him
to discrimination on the bases of sex (male) color (black), age (51)
and in reprisal for prior protected EEO activity under Title VII and
the ADEA when Complainant became aware of comparators who were treated
differently from him regarding his charge of unacceptable conduct and
subsequent removal.
In its final decision, the Agency dismissed Complainant's complaint on
the basis that Complainant had already filed a Merit Systems Protection
Board (MSPB) appeal on the same issue found in the present complaint.
CONTENTIONS ON APPEAL
On appeal, Complainant reiterates his claim that he was treated
differently from other employees when he was removed from the Agency
for unacceptable conduct.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides for the dismissal of
complaints that state the same claim as a claim that has already been
decided by the agency or the Equal Employment Opportunity Commission
(the Commission). Further, EEOC Regulation 29 C.F.R. � 1614.107(a)(4)
provides for dismissal of complaints where the complainant has raised
the same matter in an appeal with the MSPB and has elected to pursue
the non-EEO process.
Upon review, we find that Complainant's complaint was properly dismissed
for stating the same claim he previously raised in his MSPB appeal.
The record discloses that in his MSPB appeal, Complainant alleged that
the Agency discriminated against him on the basis of race and sex when
he was removed from his position on the charge of unacceptable conduct.
A hearing was held, and an MSPB Administrative Judge (AJ) issued an
initial decision finding no discrimination and upholding the removal.
Complainant filed for review with the full Board, which denied review.
Complainant then filed a petition with the Commission asking for review
of the MSPB's final order. In an appellate decision, we concurred
with the MSPB's final decision finding no discrimination. See Johnson
v. U.S. Postal Serv., Petition No. 0320100049 (Oct. 7, 2010).
Subsequently, Complainant apparently became aware of new comparators
and filed the instant complaint. To that extent, he is raising the
same issues that were raised in his MSPB appeal. We have consistently
held that the discovery of new comparators does not give rise to
a new complaint of discrimination. Gunn v. U.S. Postal Serv.,
Appeal No. 0120100031 (Mar. 18, 2010); Miller v. U.S. Postal Serv.,
Appeal No. 0120080981 (Mar. 7, 2008). Also, Complainant's new bases,
age and reprisal, do not create the right to file a new complaint.
Gafford v. U.S. Postal Serv., Appeal No. 0120073500 (Jan. 25, 2008).
Thus, we find that the Agency properly dismissed Complainant's complaint.
CONCLUSION
In conclusion, we find that the Agency properly dismissed Complainant's
claim for stating a claim that had already been decided by the MSPB and
the Commission. 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
February 4, 2011
Date
2
0120103500
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103500