01a51663
03-29-2005
Eloisa Rodriguez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eloisa Rodriguez v. United States Postal Service
01A51663
03-29-05
.
Eloisa Rodriguez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51663
Agency No. 1H-331-0008-05
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated November 26, 2004, dismissing her 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. The agency identified complainant's complaint as
alleging that complainant was subjected to discrimination on the bases of
disability (hand/wrist/back) and reprisal for prior EEO activity when,
on September 30, 2004, she was subjected to discriminatory/reprisal
practices, hostile work environment and negative comments in that her
requests for revised schedules are denied.
The agency dismissed claim complainant's complaint for stating the same
claim that is pending before the agency in EEO case number 1H-331-0035-04.
See 29 C.F.R. �1614.107(a)(1).
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides that the agency shall
dismiss a complaint or a portion of 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, however, 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. United States Postal Service,
EEOC Appeal No. 01955890 (April 5, 1996), reconsideration granted, EEOC
Request No. 05960524 (April 24, 1997) (affirming decision cited above,
but reversing other allegations on unrelated grounds).
The agency dismissed the subject complaint on the basis that it states
the same claim as Agency Complaint No. 1H-331-0035-04. To support
its assertion, the agency provides the acceptance letter for Agency
Complaint No. 1H-331-0035-04, identifying the issue as, on May 26, 2004,
�You were denied a revised schedule.� The bases for discrimination stated
therein were race and color. In the present complaint, Agency Complaint
No. 1H-331-0008-05, complainant asserts that she was subjected to reprisal
following her filing of an EEO complaint and a hostile work environment
due to a supervisor's actions, negative comments, and behavior directed
toward her. She further maintains that revised schedules and her 3971's
are being denied in an �arbitrary and capricious manner with constant
unprofessional and discourteous manner.� She identifies disability and
retaliation as the bases for the discrimination.
The Commission finds that the agency improperly dismissed complainant's
subject complaint because complainant has in fact stated a separate claim
of discrimination in Agency Complaint No. 1H-331-0008-05. While the
issue in the first complaint is the denial of a revised schedule, a
careful and thorough reading of complainant's second complaint reveals
that complainant is alleging that she was subjected to reprisal and a
hostile work environment, only part of which is evidenced by the denial of
a revised schedule. The issue to be investigated, therefore, is whether
the agency discriminated against complainant on the bases of disability
(hand, wrist, and back surgery with herniated discs), reprisal for prior
EEO activity and subjected her to a hostile work environment when the
named supervisor directed negative comments and behavior toward her and
denied her requests for revised schedules and 3971's. We note that
complainant should provide to the agency an elaboration on the types
and frequency of the negative comments, actions, and behaviors that
complainant alleges created the hostile work environment.
Accordingly, the Commission reverses the agency's dismissal of
complainant's complaint, and we remand the complaint to the agency for
further processing, as specified in the order below.
ORDER (E0900)
The agency is ordered to process the remanded claims 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 (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
____03-29-05______________
Date