01982689
03-31-1999
Esperanaza Udave, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Esperanaza Udave, )
Appellant, )
)
v. ) Appeal No. 01982689
) Agency No. M98001
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
______________________________)
DECISION
Appellant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
concerning her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., and the Age Discrimination in Employment Act of
1967, as amended (ADEA), 29 U.S.C. �621 et seq. The Commission hereby
accepts the appeal in accordance with EEOC Order No. 960, as amended.
The issue on appeal is whether the agency properly dismissed the
appellant's complaint, pursuant to 29 C.F.R. �1614.107(a) on the grounds
that the allegations were currently pending before the agency in a
previously filed complaint.
Appellant alleges that she was discriminated against on the bases of race
(Hispanic), sex (female), reprisal (prior EEO activity), age (47), and
physical disability (multiple), when she was given a ten day suspension
on September 5, 1997. She filed an EEO complaint on August 23, 1997,
regarding this action, claiming discrimination on the bases of physical
disability and reprisal. The agency accepted this complaint by letter of
September 11, 1997, and a report of investigation was issued on February
24, 1998. On appeal, the agency notes that appellant requested a hearing
before the EEOC, and we note that no FAD has been issued, so that the
matter is still pending.
Appellant subsequently filed another complaint on December 22, 1997,
regarding the same September 5, 1997, ten day suspension, but adding the
additional bases of sex, race, and age. On appeal, appellant argues that
this is a new complaint because these bases had not been considered in
the previous investigation of her August 23, 1997, complaint.
The Commission's regulations provide for the dismissal of a complaint, or
portion of a complaint, that states the same claim that has been decided
by the agency or the Commission. See 29 C.F.R. � 1614.107(a). See also
Terhune v. United States Postal Service, EEOC Request No. 05950907
(July 18, 1997). Here there is no dispute that the appellant is
raising an identical matter regarding the 10 day suspension. Instead,
the appellant argues that she presents a new complaint regarding the
suspension by alleging additional bases, thereby creating different
issues and theories of discrimination, which had not previously been
considered under the first complaint.
It is well settled that a complaint which states the same facts as a
previous complaint, but alleges discrimination on additional bases, will
be deemed identical to the earlier complaint and dismissed. Robbins
v. U.S. Postal Service, EEOC Request No. 01830664 (November 9,
1983). However, appellant need not file a new complaint to add a
basis or raise a new legal theory: �The crucial element of a charge of
discrimination is the factual statement contained therein. Everything
else entered on the form is, in essence, a mere application of the factual
allegations. The selection of the type of discrimination alleged...is
in reality nothing more than the attachment of a legal conclusion to
the facts alleged.� Pendergrass v. Department of Energy, EEOC Appeal
No. 01920163 (January 29, 1992) (citing Sanchez v. Standard Brands, Inc.,
431 F.2d 455,462 (5th Cir. 1970)). Furthermore, appellant is entitled
to amend her complaint to add additional bases of discrimination, such
as sex, age, or race, at any time. See Lastre v. Department of Veterans
Affairs, EEOC Request No. 05910862 (December 30, 1991).
Therefore, we find that the agency properly dismissed the appellant's
allegations with respect to the 10 day suspension as being identical to
those previously filed in her August 23, 1997, complaint. However, we
note that the appellant is entitled to add sex, age, and race as bases
of discrimination in conjunction with her pending complaint.
Accordingly, we AFFRIM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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.
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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.F.R.).
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:
March 31, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations