0120112453
06-11-2012
Tracy D. Johnson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Tracy D. Johnson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120112453
Agency Nos. 4G870009510, 4G8700015091
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 14, 2011, dismissing his 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., 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 Clerk at the Agency's postal facility in Albuquerque. On December 16, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), color (White), disability (physical), and reprisal for prior protected EEO activity when:
1. Since August 2008 and continuing, he has not been provided a reasonable accommodation; and
2. Since August 2008, he has been denied numerous bid jobs.
The Agency dismissed claim the entire complaint in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(1) on the grounds that it stated the same claim that is pending before the Agency. Specifically, the Agency indicated that the instant matter regarding the ongoing denial of reasonable accommodation and the ongoing denial of numerous bid jobs since August 2008 is identical to the claim raised in an EEO complaint previously filed by Complainant; Agency Case No. 4G870001509. The record in this matter further indicates that Agency Case No. 4G870001509 is currently pending a hearing before an EEOC Administrative Judge.
On appeal, Complainant contends that the Agency incorrectly determined that the he has raised identical issues in the two Agency Case numbers discussed above. Specifically, Complainant indicates that in Agency Case No. 4G870009510 he has identified additional claims of denials of reasonable accommodation and denials of bid jobs which are like or related to claims previously filed but are not identical, therefore making the Agency's dismissal on the grounds that he has raised the same claim in a prior complaint improper.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. However, 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. Dep't of the Air Force, EEOC Appeal No 01955890 (Apr. 5, 1996) rev'd on other grounds EEOC Request No. 05960524 (Apr. 24, 1997).
Here, Complainant alleges that the claims raised in Agency Case No. 4G870009510 are not identical to those he raised in a prior complaint. The record contains documents pertaining to the Agency Case No. 4G870001509 which Complainant acknowledges is pending a hearing before an EEOC Administrative Judge. The hearing documents concerning Agency Case No. 4G870001509 identify Complainant's claims as follows:
1. After Complainant's position at Manzano Station was abolished in June of 2008, Complainant was assigned to the DBCS section at the Albuquerque P & DC where management has failed to provide him reasonable accommodation; and
2. From June 2008 and continuing, Complainant has been denied numerous bid jobs which could have provided reasonable accommodation.
Upon review of the record, we find that the instant complaint does not state the same claim as the previous matter. Consequently, the Commission finds that the Agency's dismissal on the grounds that the complaint raises a matter previously investigated by the Agency was improper.
CONCLUSION
We REVERSE the Agency's dismissal of the complaint and we REMAND the complaint to the Agency for further processing in accordance with the following ORDER.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 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 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
June 11, 2012
__________________
Date
1 We note here that Complainant indicates that in the instant matter, he is appealing the Agency's decision with respect to Agency Case No. 4G870009510 and not Agency case No. 4G870001509.
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0120112453
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112453