EEOC Appeal 2020000826

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marya S,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 2020000826
Agency No. 4K-270-0099-19
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision, dated September 13, 2019, dismissing 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. and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Manager, Customer
Services, Grade 21, at the Agency’s Shannon Plaza Post Office facility in Durham, North Carolina.
The record shows that Complainant filed an earlier EEO complaint (4K-270-0024-19), alleging
discrimination when she was forced to work in a hostile work environment and charged Absent
Without Official Leave (AWOL).
On August 10, 2019, Complainant filed this complaint (4K-270-0099-19), alleging that the Agency
subjected her to discrimination on the bases of race (African-American), sex (female), color
(Black), and disability when:
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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1. 	on March 15, 2019, the Postmaster placed Complainant in an AWOL status; and
2. 	Complainant was forced to work in a hostile work 	environment and her hostile
work environment claim was not properly investigated by conducting an Initial
Management Inquiry Process (IMIP).
Complainant’s Time and Attendance records show that Complainant has been away from work
since December 4, 2017. The record shows that, on or about August 29, 2018, she was placed in
an absent without official leave (AWOL) status and her request for Leave without Pay (LWOP)
was denied.
On November 29, 2018, Complainant contacted the EEO office regarding her claims. She filed her
first complaint on March 15, 2019, which was assigned the case number 4K-270-0024-19. The
Agency dismissed her complaint on April 1, 2019. Complainant did not appeal that dismissal.
In this second complaint, Complainant claims that she was wrongfully placed in an AWOL status,
forced to work in a hostile work environment and her hostile work environment claim was not
properly investigated. 	She says that the Agency conducted IMIPs regarding the hostile work
environment claims of others, but the Agency did not do so in her case. She states that other
supervisors who retired had not been placed on AWOL.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a
claim. The Agency reasoned that Complainant previously contacted the EEO office regarding the
same allegation, where she alleged that she was discriminated against when she was placed on
AWOL, a subordinate threw a scanner at her, she was called a name, and after reporting the matter,
management failed to do anything about it. 	The Agency stated, “there is no indication that the
original fact pattern in these cases are distinctly different from that of the instant complaint.”
This appeal followed. On appeal, Complainant asserts that the Agency erred in dismissing her first
complaint for untimely EEO contact. She also states her claim should not have been dismissed,
claiming that she was forced to retire on disability because the Postal Service failed to investigate
her claims, which constitute a constructive discharge. She contends that her second complaint
should not have been dismissed as identical to the first, because she raises a new charge that she
is “still being harassed because she was placed in an AWOL status in retaliation.”
The Agency did not file a brief in response to the appeal.

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ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that an agency shall dismiss a
complaint that states the same claim that is pending before or has been decided by the Agency or
Commission.
Inasmuch as Complainant previously filed a complaint, docketed as case number 4K-270-0024-
19, on the same matter, we find the Agency properly dismissed the claim. See Machelle L. v.
Department of Veterans Affairs, Veterans Health Administration, EEOC Appeal 0120152398
(Dec. 3, 2015) (affirming dismissal where the complainant filed a previous complaint on the same
matters).
Finally, we recognize that, on appeal, Complainant is asserting this as a constructive discharge
claim and adding a new basis (retaliation), but the underlying claims are the same and pertain to
the same facts. Further, we note that she did not allege constructive discharge in her complaint.
For these reasons, we find that the complaint fails to state a new claim under the EEOC regulations
because Complainant failed to show that she suffered harm or loss with respect to a term, condition,
or privilege of employment for which there is a remedy. See Diaz v. Dep’t of the Air Force, EEOC
Request No. 05931049 (April 21, 1994).
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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.

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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
June 23, 2020
Date