01997031
12-08-2000
Paul J. Mikula, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Paul J. Mikula v. United States Postal Service
01997031
12-08-00
.
Paul J. Mikula,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01997031
Agency No. AJ480012499
DECISION
Complainant timely filed an appeal with this Commission from the
final agency decision, concerning his 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 Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. Upon review, the Commission finds that the agency improperly
dismissed complainant's formal EEO complaint pursuant to 29 C.F.R. �
1614.107(a)(1).<1>
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
complainant's formal EEO complaint for stating the same claim that is
pending before or has been decided by the agency.
BACKGROUND
Complainant filed a formal complaint on July 7, 1999, alleging that
he was discriminated against on the bases of his race (non-specified),
religion (non-specified) and disability (Deaf, Fibromyalgia Syndrome) when
complainant's physician gave him temperature and humidity restrictions and
his supervisor requested another fitness-for-duty physical examination.
The agency in its final decision dismissed complainant's complaint for
stating the same claim that is pending before or has been decided by
the agency.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) 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.
Even where the original issue was withdrawn during EEO counseling,
a complainant may not file a second complaint where the complainant
has previously raised and withdrawn the issue. Rebello v. U.S. Post
Office, EEOC Request No. 05980211 (June 24, 1999); Williams v. U.S. Post
Office, EEOC Request No. 05950696 (December 19, 1996). 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), recons. granted, EEOC Request No. 05960524 (April 24,
1997) (affirming decision cited above, but reversing other allegations
on unrelated grounds).
In the instant case, complainant filed an informal complaint, case
no. 4-J-480-0237-98, alleging that he had been insulted and harassed
by office supervisors and management when he was required to prove
disability on many occasions. Complainant further alleged that his
deafness compounded his difficulty in that he did not always have access
to interpreters and he often misunderstood written and spoken English. On
October 30, 1998, complainant withdrew his complaint. Complainant then
filed a formal complaint on July 14, 1999, alleging that on February
25, 1999, his supervisor required him to complete another fitness
for duty examination and offered him positions, at a lesser salary,
aggravating his condition. Complainant stated in his complaint that
he was �never offered positions for which [he is] qualified� because
those who speak and write English fluently are favored, while those who
primarily use American Sign Language (ASL) are discriminated against.
Although the issues in complainant's informal complaint are similar to
those of his formal complaint, the issues are not identical. Here,
the elements of the formal complaint as to time (February 25, 1999),
incident (offering complainant a position at a lesser salary), and parties
(specific supervisor) are sufficiently dissimilar to the elements of
the informal complaint so as to warrant a remand.
The agency has failed to proffer and the record contains no evidence to
indicate that the issues in complainant's complaint have been previously
alleged by the complainant. The agency has the burden to substantiate
the bases for its final decision. In the instant case, the Commission
finds that the agency has failed to meet this burden, and therefore,
its dismissal of complainant's complaint was improper.
CONCLUSION
The decision of the agency is REVERSED and REMANDED for further processing
in accordance with this decision and the proper regulations. The parties
are advised that this decision is not a decision on the merits of
complainant's complaint. The agency shall comply with the Commission's
Order set forth 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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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
___12-08-00_______________
Date
1On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.
These regulations apply to all federal sector EEO complaints pending at
any stage in the administrative process. Consequently, the Commission
will apply the revised regulations found at 29 C.F.R. Part 1614 in
deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.