Raymond J.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Nov 19, 2020

2020004471 (E.E.O.C. Nov. 19, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Raymond J.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2020004471 Agency No. 6X-000-0026-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 24, 2020, 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., 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. BACKGROUND At the time of events giving rise to this complaint, Complainant was a former employee at the Agency who had not worked for the Agency for 36 years. On June 19, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race, sex (male), physical disability (back and hand), age, and in reprisal for prior protected EEO activity when: 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. 2020004471 2 1. On an unspecified date, Complainant’s request to meet with the Reasonable Accommodation Committee (RAC) was denied, thus denying him restoration to the Agency; 2. On an unspecified date, the Agency called Complainant’s doctor requesting medical information; 3. On unspecified dates, the Agency had Complainant under surveillance.2 The Agency dismissed the complaint in accordance with 29 C.F.R. §1614.107(a)(1) for stating the same claims as previously raised with and decided by the Agency and Commission. The Agency noted that Complainant had filed multiple EEO and Merit Systems Protection Board complaints related to his attempted restoration. Between 2000 and the current case, Complainant filed 20 separate EEO cases raising the same claims involving his attempted restoration and various ancillary claims regarding the Agency’s conduct. As a result, the Agency determined that the complaint was identical to previous complaints and dismissed the complaint. In addition, the Agency dismissed the complaint in accordance with 29 C.F.R. §1614.107(a)(9) for abuse of process. The instant appeal followed. ANALYSIS AND FINDINGS The record reveals that Complainant has raised claims that included allegations of denial of reasonable accommodation and denial of reinstatement arising out of the same fact pattern in numerous complaints with the Agency and appeals to the Commission. The Commission previously noted regarding this matter in Herb F. v. U.S. Postal Serv., EEOC Appeal No. Appeal No. 0120180742 (Mar. 30, 2018), that “subsequent requests for reinstatement do not create new cause of action. When a case is brought that arises from a previously adjudicated transaction, the Commission must dismiss the case. 29 C.F.R. 1614.107(a) (1); (citation omitted). The Commission thus finds that Complainant cannot prevail on this issue because it is res judicata.” (citing Complainant v. U.S. Postal Serv., Appeal No. 01A40923 (June 8, 2004)). After a careful review of the record, the Commission finds that the issue of his re-employment with the Agency and the related reasonable accommodation claim states the same claims raised in his previous complaints and were appropriately dismissed by the Agency for that reason. Additionally, the Commission finds Complainant’s third claim fails to state a claim because Complainant failed to allege he was aggrieved within the meaning of the regulations. The Commission's federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). 2 Complainant submitted letters from June 29, 2020 and July 23, 2020, alleging dissatisfaction with the processing of his complaint during the informal process. The Agency processed this claim separately and addressed the matter in a June 15, 2020 letter to Complainant. 2020004471 3 The Commission finds that claim (3) 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. See Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the complainant or the agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. 2020004471 4 Any supporting documentation must be submitted together with the 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 November 19, 2020 Date