U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mac K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120152577 Agency No. 4J-460-0032-15 DECISION Complainant filed an appeal with this Commission from an Agency final decision, dated May 12, 2015, dismissing a formal 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Lead SSA at the Agency's Northbrook Station in Fort Wayne, Indiana. In January 2015, Complainant contacted an EEO Counselor regarding the denial of overtime. Informal efforts to resolve Complainant's concerns were unsuccessful. Subsequently, Complainant filed the instant formal complaint based on race, sex, age, and retaliation. In the instant final decision, the Agency framed the claim as follows: On January 2, 2015, Complainant was left to staff the Northbrook Station without the benefit of lunch and break relief. The Agency dismissed the formal complaint on the grounds that it was not raised with the EEO Counselor, and that it was not like or related the matters counseled. Further, to the extent that Complainant was raising the matter at the time he filed his formal complaint, 111 days after the incident occurred, the Agency found it was untimely. Complainant filed the instant appeal. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO Counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990). The record in the instant case reflects that Complainant sought counseling solely regarding the denial of overtime. The informal complaint form and the EEO Counselor's Report show that Complainant believed he was discriminated against when he was not afforded overtime opportunities at the Centennial Post Office between November 2012 and January 2015. In his formal complaint, however, Complainant only alleged that on January 2, 2015, "With the full knowledge of the expected walk-in traffic the day after New Year. I was left to staff the Northbrook Postal Retail Office without the benefit of either lunch or break coverage." There is no indication that the denial of a break on January 2, 2015, was like or related to the overtime issue. In fact, the events involved different facilities. Therefore, we find that the Agency's dismissal, pursuant to 29 C.F.R. § 1614.107(a)(2), was proper. CONCLUSION Accordingly, for the reasons discussed herein, the Agency's final decision is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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, 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 (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 December 8, 2015 __________________ 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 0120152577 2 0120152577