0120141855
10-07-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120141855
Agency No. 4K-230-0018-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 14, 2014, dismissing her complaint of 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 worked as a Letter Carrier at the Agency's Southside Station facility in Richmond, Virginia.
On November 4, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability (back), age (64), and reprisal for prior protected unspecified EEO activity when, on August 13, 2013, Complainant's request for light duty was denied.
The record shows that Complainant filed two prior EEO complaints. On August 27, 2013, Complainant initiated her second complaint, Agency No. 4K-230-0207-13, which alleged the same claim: that that the Agency discriminated against Complainant on August 13, 2013, when the Agency denied her light duty. Specifically, Complainant requested that she not be required to carry a satchel, inasmuch as her route is a driving route. The record shows that, on October 4, 2013, the parties entered a settlement agreement to resolve the issues raised with regard to Agency No. 4K-230-0207-13.
On November 4, 2013, Complainant sought EEO counseling with regard to the subject claim that her supervisor unreasonably denied her request for light duty and sent her home. According to the EEO counselor's report, Complainant identified the date of the alleged discrimination in the instant complaint (Agency No. 4K-230-0018-14) as August 13, 2013, which was the same date as alleged in the settled complaint. No other subsequent date, or personnel action, is alleged in this complaint.
The Agency dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency reasoned that dismissal was warranted because the matters raised are identical to those raised in a previous complaint. The Agency also reasoned that Complainant was attempting to submit comparators who were treated differently. The Agency viewed the complaint as a "spin-off" complaint from one previously settled. In addition, the Agency dismissed the complaint, because it viewed Complainant's complaint as a challenge to the outcome of the grievance process.
This appeal followed.
ANALYSIS AND FINDINGS
An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, 1614.106(a). 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 (April 21, 1994).
In this case, the two most recently filed complaints concern intersecting facts and both involve events that occurred on the same alleged date. Consequently, they are identical in time and substance. The record does not reveal any personnel action that occurred after the August 13, 2013 incident.
The Commission finds that the subject complaint (Agency No. 4K-230-0018-14) fails to state a claim under the EEOC regulations because Complainant essentially states the same claim that was alleged in a prior complaint (Agency case number 4K-230-0207-13) and which was the subject of a prior settlement agreement. Upon review, we find that Complainant's complaint was properly dismissed.
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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 tends 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
October 7, 2014
__________________
Date
2
0120141855
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120141855