0120093185
01-26-2010
Arnold T. Dobran, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Arnold T. Dobran,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093185
Agency No. 1H302004309
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 8, 2009, 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.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (Caucasian), disability (herniated
disc), age (65 years at time of incident), and reprisal for prior
protected EEO activity under a statute that remains unspecified in the
record when:
1. since February 9, 2009 and continuing, complainant was not provided a
reasonable accommodation in that his work hours were cut, he was denied
work, and was only allowed to work intermittently for two weeks; and
2. since March 16, 2009, complainant was placed off the clock in a
non-duty status.
The agency dismissed the claims. In its FAD, the agency found that
complainant had filed a previous claim on the same matter1 and had also
filed a mixed case appeal with the Merit Systems Protection Board (MSPB).
On appeal, complainant argues that his MSPB claim addresses claim 2
only, not claim 1. Furthermore, complainant argues, his earlier EEO
complaint addressed a separate incident than does claim 1. Specifically,
complainant argues that his prior EEO complaint was settled in January
2009 and that it is therefore impossible for the prior complaint to be
identical to the current complaint which addresses events that occurred
in February and March, 2009.
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.
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. Department of the Air Force, EEOC Appeal No 01955890
(April 5, 1996) rev'd on other grounds EEOC Request No. 05960524 (April
24, 1997).
Following a review of the record, the Commission finds that the agency
has not met its burden of establishing that claim 1 is identical to a
previously-filed EEO complaint. The agency has not included a copy of
the previously-filed complaint but instead has included copies of the
settlement agreement that settled that complaint, as well as statements
from agency officials in relation to the previous complaint. None of
the documents submitted show that the prior complaint is identical to
claim 1. Furthermore, as complainant points out, claim 1 addresses events
that occurred in February and March 2009, long after the filing of the
earlier complaint. Therefore, we find that claim 1 is not identical to
a previously-filed complaint.
The agency has included copies of complainant's MSPB appeal. That
document shows that the issue before the MSPB was complainant being placed
on enforced leave on March 13, 2009. The MSPB appeal makes no mention
of complainant being denied a reasonable accommodation, having his hours
cut, being denied work, or only being allowed to work intermittently for
two weeks. Furthermore, in view of the fact that complainant states
in his MSPB appeal that he was placed on enforced leave, we do not
construe his MSPB appeal as making a claim of constructive discharge
due to denial of reasonable accommodation and having his hours cut.
We therefore find that claim 1 was neither raised before the MSPB, nor is
it inextricably intertwined with a claim that was raised before the MSPB.
We find, however, that claim 2 was raised before the MSPB. Accordingly,
for the reasons stated above, we AFFIRM the FAD in part and REVERSE in
part and REMAND claim 1 to the agency for processing in accordance with
the Order below.
ORDER (E0408)
The agency is ordered to process the remanded claim (claim 1)
in accordance with 29 C.F.R. � 1614.108 et seq. The agency shall
acknowledge to the complainant that it has received the remanded claim
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 (K1208)
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 (M1208)
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), 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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1008)
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
January 26, 2010
__________________
Date
1 The FAD does not specify which claim(s) was previously filed as an
EEO complaint and which was previously filed with the MSPB.
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0120093185
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093185