0120152245
04-04-2017
Tessa L.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tessa L.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120152245
Agency No. 4G320010515
DECISION
Complainant timely appealed to this Commission from the Agency's May 12, 2015 dismissal of her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Retail Associate Clerk (PS-6) at the Fort Walton Beach Post Office in Fort Walton Beach, Florida.
On May 4, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity when: on March 20, 2015, a coworker completed a three month detail as Acting Supervisor, after Complainant was denied this opportunity.
Complainant alleges that she has been subject to "ongoing" denial of a 204B assignment at Fort Walton Beach Post Office, which is a temporary supervisory detail arranged by the postmaster. Prior to the instant complaint, Complainant filed a number of EEO and grievance actions against the Agency on the matter both before and after the current postmaster ("PM"), arrived in 2013.
In September 2013, Complainant submitted a request to PM, in writing for a 204B/Customer Service assignment at Fort Walton Beach Post Office. PM offered Complainant a 204B in another location, which she declined. According to Complainant, there have been "several supervisory positions available [at the Fort Walton Beach Post Office] and therefore, many 204B opportunities." PM explained to Complainant that he did not have any vacancies for a 204B assignment at Fort Walton Beach because the union contract stipulated that he would have to assign the 204B position for two consecutive weeks.
Then, on or around December 15, 2014, PM arranged for one of Complainant's coworkers to temporarily work at another location so that an employee from that location could take a 204B/Customer Service assignment at Fort Walton Beach Post Office. The assignment lasted well over 2 weeks, ending on March 20, 2015. Complainant, believing PM disregarded her request for the same 204B assignment as retaliation for naming him in prior EEO and grievances, filed the instant complaint.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1), finding that she raised previously the same claim. Alternately, the Agency dismissed her complaint for untimely contact with an EEO Counselor pursuant to � 1614.107(a)(2) and � 1614.105(a)(1).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides for the dismissal of a complaint that states the same claim that is pending before or has been decided by the Commission or the Agency. To be dismissed as the "same claim," the present formal complaint and prior complaints must have involved identical matters. It has long been established that "identical" does not mean "similar." 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. United States Postal Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996).
The Agency found that "the issue raised in the instant complaint is merely a reiteration and extension of [Complainant's] previous complaints." According to the Agency, "[Complainant has] been continuously denied a detail as an acting supervisor" and that this matter has been raised already in Agency No. 4G-320-0213-14 (May 19, 2015) and Agency No. 4G-320-0071-14 (Oct. 31, 2014). We find the record lacks any documentation, such as a copy of the Final Agency Decisions or Formal Complaints containing these allegedly identical claims. It is the Agency's burden to provide evidence or proof to substantiate its final decision. See Complainant v. Dep't of Commerce, EEOC Appeal No. 0120142525 (Nov. 25, 2014) quoting Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). Here, the Agency has not presented sufficient evidence to support its finding that Complainant previously filed the same claim.
In relevant part, 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45 day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb, 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012).
Complainant became aware of the alleged discriminatory action on or around December 15, 2014, when the employee detailed from another post office began his 204B assignment at the Fort Walter Beach Post Office. Reasonable suspicion was also established, given Complainant's contention that the alleged discrimination is "ongoing" and her allegation that PM regularly withholds 204B opportunities as a way to retaliate against her for past EEO activities. However, Complainant did not initiate contact with an EEO Counselor until March 30, 2015, well after the 45 day limitation period passed.
We are not persuaded by Complainant's argument on appeal, that we should base the limitation period on the date the detail ended, March 20, 2015, as it "clearly show[ed] that [PM] did have more than a 14 days consecutive 204B opportunity which could have been split and allotted [to Complainant]." As stated above, the time limitation period is based on the date Complainant reasonably suspected discrimination. Even if Complainant were waiting to determine whether the 204B assignment consisted of four consecutive weeks (thereby providing enough time to split the assignment), Complainant's filing date would still be untimely.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint 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
April 4, 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.
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