[Redacted], Ivan V., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2023000108 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ivan V.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2023000108 Agency No. 1I-258-0018-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s decision dated September 12, 2022, 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 worked as a Tractor Trailer Operator, A-08, at the Agency’s Processing & Distribution Center facility in Nashville, Tennessee. On August 24, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination. The Agency famed this as a complaint alleging discrimination on the bases of race (White), age, and reprisal for prior protected EEO activity when: 1. on a date not specified in April 2022, he overheard a supervisor threaten to downgrade the pay on Complainant’s assigned route from a Level 8 to a Level 7; and 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. 2023000108 2 2. on dates to be specified, he was required to operate a larger trailer, causing him delays, while a black driver was allowed to operate a smaller one. The Agency dismissed the complaint for stating the same claim that is pending before or has been decided by the agency or Commission pursuant to 29 C.F.R. 1614.107(a)(1). The instant appeal followed. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. The Commission has consistently held that in order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Dep’t of the Air Force, EEOC Appeal No 01955890 (Apr. 5, 1996), rev’d on other grounds, EEOC Request No. 05960524 (Apr. 24, 1997). Here, the record includes an Acknowledgement and Acceptance of Remanded Claim letter (“Remanded Claim Letter”), dated March 25, 2022, indicating that in a previously filed EEO complaint (Agency Case No. 11-258-0005-22), Complainant alleged discrimination on the bases of race (White), sex (male), age, and retaliation. The allegations include that, on April 18, 2022, Complainant overheard his supervisor threaten to downgrade the pay on his assigned route from a Level 8 to a Level 7 and that, on dates to be specified, he was required to operate a large trailer while a black driver was allowed to operate a smaller one. On appeal, Complainant concedes that claim 1 is being investigated as part of the original complaint and can be removed from the instant complaint. However, he submits that claim 2 is a subsequent occurrence of his being required to operate a larger trailer while a black driver was allowed to operate a smaller one and that this is a new complaint. We disagree. The Remanded Claim Letter indicates that the dates when Complainant alleged that he was required to operate the larger trailer while a black driver was allowed to operate a smaller one would be specified. We find the allegations in claim 2 of the instant complaint specify a date, as contemplated by the prior complaint. Thus, we find the claims are nonetheless identical to the ones raised in Agency Case No. 11-258-0005-22 and the Agency properly dismissed Complainant's complaint for stating the same claim as a previously filed complaint. Accordingly, we AFFIRM the Agency’s final decision dismissing the complaint. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if 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 2023000108 3 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, a 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. 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. 2023000108 4 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 January 26, 2023 Date