0120102119
09-23-2010
Joseph Robinson, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, (Veterans Health Administration), Agency.
Joseph Robinson,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
(Veterans Health Administration),
Agency.
Appeal No. 0120102119
Agency No. 2003-0674-2010100-999
DECISION
On April 19, 2010, Complainant filed an appeal from the Agency's final decision dated April 9, 2010, 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUE PRESENTED
1. Whether the Agency properly dismissed Complainant's claim for stating the same claim pending before the Commission.
2. Whether the Agency properly dismissed Complainant's claim for untimely filing.
BACKGROUND
Complainant was employed by the Agency as a Food Service Worker Foreman at the time of events giving rise to this complaint. He filed a formal EEO complaint on March 2, 2010, alleging discrimination on the basis of sex (male) when (1) on November 27, 2007, he was suspended for two days, effective December 11 and 12, 2007; and (2) on the basis of reprisal (prior EEO activity) when, on November 14, 2008, he was suspended for five days, effective January 5 and 9, 2009. The Agency dismissed the first claim for stating the same claim already pending before the Commission, and the second for failure to file a formal complaint containing this allegation in a timely manner. Complainant filed this appeal.
CONTENTIONS ON APPEAL
On appeal, Complainant contends than an EEOC Administrative Judge (AJ) erred when she remanded claim (1) to the Agency for issuance of a decision when she interpreted his request for a "right to sue" letter as a request for a withdrawal of his hearing request. He further contends that, regarding claim (2), he was notified of his right to file a formal complaint on February 25, 2010, which he filed on March 2, 2010. Finally, he contends there is no correlation between the accepted issue and the claims referred to in the final decision because his actual filing regarded a performance appraisal he received on November, 10, 2009, which rated him "fully successful." Complainant asks that the Commission remand all three claims to an AJ for a hearing.
The Agency argues that claim (1) was properly remanded and that its decision regarding Complainant's two day suspension was issued on December 10, 2009, appealed to the Commission and docketed as EEOC Appeal No. 0120101186. The Agency goes on to argue that Complainant was apprised of his right to file a formal complaint regarding claim (2) on January 6, 2009, but did not do so until March 2, 2010, which makes this claim untimely. The Agency indicated that Complainant contacted an EEO Counselor to discuss a third claim concerning a performance rating he received on November 10, 2009, but argues that in response to the February 18, 2010 notification informing him of the right to file a formal complaint on the performance rating, he inexplicably chose to list on his March 2, 2010 complaint claims (1) and (2) instead. The Agency asks that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
Upon review of the evidentiary record, we find that the Agency's contentions regarding the procedural aspects of this matter are correct.
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).
In Robinson v. Department of Affairs, EEOC Appeal No. 0120101186 (June 10, 2010), the Commission found that Complainant failed to prove he was discriminated against when he was suspended for two days (December 11 and 12, 2007) on November 27, 2007. We also found that the AJ did not err when she interpreted Complainant's request for a "right to sue" letter as an intention to withdraw his request for a hearing. As these matters have already been addressed by the Commission, the Agency properly dismissed claim (1) pursuant to � 1614.107(a)(1).
EEOC Regulation 29 C.F.R. � 1614.106(b) provides that a formal complaint must be filed within 15 days of receipt of the notice of right to file. However, under appropriate circumstances, this time period is subject to waiver, estoppel and equitable tolling. See 29 C.F.R. � 1614.604(c). The record shows that in a notice of right to file a formal complaint dated February 18, 2010, the Agency informed Complainant's attorney that Complainant had 15 days from the date of the notice to file a formal complaint concerning the performance appraisal, and in his response thereto, Complainant filed a claim alleging discrimination, in pertinent part, regarding claim (2) even though the Agency had informed him of his right to file a complaint concerning this particular allegation in January 2009. The March 2010 filing of this claim is well beyond the regulatory time limit and therefore appropriately dismissed. We also find that Complainant failed to put forth evidence which justifies a tolling of the time period.
CONCLUSION
Upon review, we find that the Agency properly dismissed Complainant's complaint. We hereby AFFIRM the final decision.
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 (S0610)
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. 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
____9/23/10______________
Date
2
0120102119
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102119