U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Truman B,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120182184 Agency No. 4G-700-0074-18 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated May 14, 2018, 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. BACKGROUND During the period at issue, Complainant worked as a Letter Carrier at the Agency's Central Carrier Station in New Orleans, Louisiana. On April 24, 2018, Complainant filed the instant formal complaint. Complainant claimed that the Agency subjected him to discrimination based on race when: 1. on February 9, 2018, management did not discipline another employee for yelling and shouting in the workroom even though management had issued Complainant a seven-day time off suspension on August 17, 2017 for misconduct and for causing a disturbance in the work room. In its May 14, 2018 final decision, the Agency dismissed the formal complaint on two grounds. First, the Agency determined that the same claim was raised in a prior EEO complaint and dismissed pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency also dismissed the formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on March 20, 2018, which it found to be beyond the 45-day limitation period from the effective date of Complainant's August 17, 2017 suspension. The instant appeal followed. On appeal, Complainant argues, that the instant formal complaint is not the same matter raised in a prior complaint, because "the act of discrimination is continuing to happen," and the February 9, 2018 incident referenced above, "is not a comparison." Complainant further argues that he timely contacted the EEO Counselor within 45 days from the February 9, 2018 incident. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or the Commission. The Agency properly dismissed the formal complaint for raising the same matter that was raised in a prior complaint (Agency Case No. 4G-700-0134-17). The record contains a copy of the prior complaint and prior EEO Counselor's report where Complainant alleged discrimination based on age, race, disability, and reprisal for prior EEO activity when management issued a seven-day suspension for misconduct on August 17, 2017. Contrary to Complainant's assertion, we find that the instant complaint includes new comparator information in relation to Complainant's August 17, 2017 suspension. However, the discovery of a new comparator does not give rise to a new complaint. We find that the factual claim is identical to the matter already raised by Complainant. Because we find that the instant formal complaint states the same claim that is pending before the Commission, we need not address the Agency's alternative grounds for dismissal. The Agency's final decision dismissing the instant formal complaint for the reason stated above is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 ___September 6, 2018_______________ 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 0120182184 4 0120182184 5 0120182184