01983708
09-09-1999
Robert Willis, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Robert Willis v. Department of the Navy
01983708
September 9, 1999
Robert Willis, )
Appellant, )
) Appeal No. 01983708
v. ) Agency No. 96-65923-022
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD-2) 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 �501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. �791 et seq. FAD-2 was dated March
6, 1998, and received by appellant on March 16, 1998. The appeal was
postmarked on April 10, 1998. Accordingly, the appeal is timely (see
29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order
No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for stating the same claim contained in a previous complaint
by the appellant.
BACKGROUND
Prior to the instant complaint, appellant filed a formal complaint
(complaint 1) in which he alleged discrimination on the basis of
disability (perceived disability by agency with respect to back injury)
when:
(1) per a memorandum issued on January 20, 1995, he was retained in a
light duty status;
(2) he was not informed of the standards used to determine his return
to full duty status, or of the date for removing the restrictions;
(3) management failed to honor lifting the restrictions as recommended
by his physician.<1>
On June 12, 1997, an EEOC administrative judge (AJ-1) issued a decision
concerning complaint 1. AJ-1 issued a finding of discrimination on
the first two issues. AJ-1 did not make a finding with respect to
the third issue. The agency issued a final agency decision (FAD-1)
on September 10, 1997.<2>
Appellant then filed a separate complaint (complaint 2) alleging
discrimination on the bases of disability (perceived physical
restrictions) and reprisal (prior EEO involvement) when, on May 4, 1995,
he was issued a notice to report for a fitness for duty evaluation,
despite medical evidence that he was fit to return to duty.
On March 6, 1998, the agency issued a final agency decision (FAD-2)
concerning complaint 2. In FAD-2, the agency dismissed complaint 2
on the basis of res judicata, in accordance with the recommendation of
another EEOC Administrative Judge (AJ-2). This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an allegation or a
complaint should be dismissed if it states the same claim that is pending
or has already been decided by the agency or Commission. The Commission
has interpreted this regulation to require that the complaint must set
forth "identical matters" raised in a previous complaint filed by the
same complainant, in order for the subsequent complaint to be rejected.
Terhune v. United States Postal Service, EEOC Request No. 05950907
(July 18, 1997)(citing Russell v. Department of the Army, EEOC Request
No. 05910613 (August 1, 1991), which interprets 29 C.F.R. �1613.215(a)(1),
the predecessor of 29 C.F.R. �1614.107(a)).
Based on the record we find that complaint 2 states the same claim as
allegation (3) of complaint 1. Allegation (3) of complaint 1 concerns
the doctor's note that advised the agency to lift appellant's work
restrictions. Complaint 2 concerns the notice to report for the fitness
for duty exam despite the aforementioned doctor's note advising the
agency to lift the restrictions. We find, therefore, that complaint 2
sets forth the "identical matters" raised in allegation (3) of complaint
1, and should be dismissed.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
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(c).
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. 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 (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).
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:
September 9, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 AJ-2's decision on complaint 2 misstates this allegation, wording it as,
"management failed to honor the lifting restrictions as recommended by
the physician." The record, however, contains the physician's note,
dated September 13, 1994, which made the recommendations in question.
It is clear from the note that this allegation concerns having the
restrictions lifted, rather than limitations on what the appellant could
physically lift.
2 The record contains neither a copy of this FAD, nor an explanation
of what it decided.