0120132498
03-25-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120132498
Agency No. 1B102001713
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 14, 2013, dismissing his complaint of unlawful employment discrimination in violation of 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 Mail Handler Equipment Operator at the Agency's facility in New York, New York.
On April 10, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (shoulder, spine, knee), age (73), and reprisal for prior protected EEO activity when:
1. In April 2012, he was issued a 7-Day No-Time-Off Suspension;
2. In May 2012, he was issued a 14-Day Suspension;
3. From June 2012 and continuing, he was assigned to work situations that placed him at risk of physical injuries and financial harm;
4. In July 2012, his request for Continuation of Pay (COP) was denied;
5. On unspecified dates, he was wrongfully charged annual and sick leave when he was sent home because there was no work available; and
6. On January 26, 2013, he was targeted for scrutiny and adverse job actions including being placed in a work assignment with limited work hours and when his medical records were improperly handled.
The Agency dismissed claims 1-5 of the complaint, pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(1), for stating the same claims as an earlier complaint (Agency No. 1B-102-0036-12). The Agency dismissed claim 6 in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(1) on the grounds that it failed to state a claim. The instant appeal followed.
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 fails to state a claim under � 1614.103 or � 1614.106 (a), or 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. Dep't of the Air Force, EEOC Appeal No 01955890 (Apr. 5, 1996), rev'd on other grounds, EEOC Request No. 05960524 (April 24, 1997).
Here, a review of the record indicates that claims 1-5 were previously raised in Complainant's prior complaint identified as Agency No. 1B-102-0036-12. Therein, Complainant raised his concerns regarding (1) a 7 Day No-Time Off Suspension in April 2012, (2) a 14 Day Suspension in May 2012, (3) from June 2012 and continuing his work assignments were inconsistent with his medical restrictions (4) in July 2012, his request for Continuation of Pay was denied, and (5) on unspecified dates, he was wrongfully charged annual and sick leave and sent home when there was no work available. Upon review we find that claims 1-5 of the instant complaint are identical those raised in Complainant's earlier complaint.
Concerning claim 6, we find that the Agency improperly determined that Complainant failed to state a claim. Complainant alleges in claim 6 that on January 26, 2013, he was targeted and subjected to scrutiny and adverse actions including being placed in a work assignment with limited work hours and when his medical records were improperly handled. The Agency contends that claim 6 is a general statement referencing claims from his prior complaint. Specifically, the Agency indicates that on the Information Sheet for Pre-Complaint counseling in Agency Case No. 1B-102-0036-12, Complainant includes a statement referring to the Agency's alleged improper handling of his medical records and assignments he received with limited work hours. However, Complainant did not include those specific claims in his prior complaint. Consequently, the issues addressed in claim 6 were not addressed by the Agency in its decision on Complainant's prior complaint. To the extent that the Agency contends that claim 6 involves a generalized summary of Complainant's issues and does not specifically address any particular incident, we note that the Commission has previously held that the only questions for an Agency to consider in determining whether a complaint states a claim are: (1) whether the complainant is an aggrieved employee; and (2) whether the complainant alleges employment discrimination on a basis covered by EEO statutes. Bennet v. U.S. Postal Serv., EEOC Appeal No. 0120073097 (January 11, 2011). If these questions are answered in the affirmative, an agency must accept the complaint for processing regardless of its judgment of the merits. Odoski v. Dep't of Energy, EEOC Appeal No. 01901496 (Apr. 16, 1990). In that regard, we find that the Agency improperly dismissed claim 6.
CONCLUSION
Accordingly, the Agency's final decision dismissing claims 1-5 in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(1) is affirmed. The Agency's decision dismissing claim 6 is REVERSED for the reasons set forth herein. Claim 6 is REMANDED to the Agency for processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims (claim (6)) in accordance with 29 C.F.R. � 1614.108. 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 (T0610)
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 (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
March 25, 2014
__________________
Date
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0120132498
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132498