0120170185
03-31-2017
Ralph B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ralph B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120170185
Agency No. 4C-440-0121-16
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 7, 2016, regarding his withdrawal of his pre-complaint alleging unlawful employment discrimination in violation of 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 was former employee at the Agency. Complainant had been a temporary casual employee who had to leave the Agency due to a back injury in 2004.2 Complainant indicated that he later sought to return to his former position on at least three occasions. Complainant did not provide any information regarding how or when this occurred.
Complainant contacted the Agency's EEO office to obtain information about returning to work. The EEO Specialist indicated to him that he needed to apply for positions online since he had not been on the Agency's rolls for 12 years. She indicated to him that he could create an online profile from which he could apply. Based on her understanding of the conversations, she believed that she had provided all the information Complainant needed and that there was nothing available for him through the EEO complaint process. As such, the EEO Specialist sought to meet with Complainant in order to obtain his signature on a withdrawal of the "pre-complaint" he initiated when he first sought counseling.
On July 8, 2016, the EEO Specialist met with Complainant and obtained his signature on the withdrawal notice. On July 12, 2016, Complainant faxed a letter to the Agency concerning his belief that the EEO Specialist had committed fraud in order to obtain the withdrawal. He stated that he was told that he had been out on worker's compensation and that his case was over. He was instructed to reapply for a position and then given the withdrawal form which he felt was blank. He argued that he did not intend to withdraw his EEO complaint and expected was to be permitted to go to the next stage of the complaint process.
By letter dated October 7, 2016, the Agency addressed Complainant's claim that he was coerced into withdrawing his pre-complaint matter. The Agency found that Complainant had signed the withdrawal form which stated:
I fully understand that by withdrawing the compliant or allegations I have withdrawn, I am waiving my rights to any further appeal of this allegation through the EEO process. I further stipulate that my withdrawal did not result from threat, coercion, intimidation, promise, or inducement.
The Agency found that Complainant had provided no basis upon which to rely to revoke the withdrawal and reopen his complaint. As such, Complainant was provided with appeal rights to the Commission to review the Agency's decision.
Complainant appealed asserting that the EEO Specialist lied to him when she told him concerning what he needed to do to obtain reemployment with the Agency. Complainant indicated that he has had a hard time finding employment due to his medical restrictions and that he has tried to come back to the Agency three times. He essentially argued that the EEO Specialist's actions constituted unlawful interference with his right to use the EEO complaint process.
ANALYSIS AND FINDINGS
The Commission has found that where a complainant "knowingly and voluntarily withdrew his complaint . . . the Commission considers the matter to have been finally abandoned." See Tellez v. Dep't of Transp., EEOC Request No. 05930805 (Feb. 25, 1994). We find no persuasive evidence that Complainant was coerced into withdrawing his pre-complaint. As such, we find that the Agency's dismissal was appropriate.
Moreover, to the extent the EEO Specialist may have misunderstood Complainant's desire to continue in the EEO complaint process, the appropriate action would have been to issue Complainant a Notice of Right to File a Formal Complaint, rather than having him sign the withdrawal. However, we find that the EEO Specialist's action caused no harm. Based on his own statements, Complainant has not alleged any specific Agency action has occurred since 2004. Therefore, had he filed a formal complaint, we believe that it would have been properly dismissed pursuant to 29 C.F.R. � 1617.107(a).
CONCLUSION
Accordingly the Agency's decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
March 31, 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 It appears that Complainant had been receiving some sort of worker's compensation since the injury.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120170185
4
0120170185