0120112482
09-26-2012
Tracey A. Hill, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Tracey A. Hill,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120112482
Agency No. HSCBP002692011
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 28, 2011, dismissing her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supply Chain Specialist, Customs Trade Partnership Against Terrorism (CTPAT), at the Agency's Newark Field Office, Office of International Trade, located in Elizabeth, New Jersey. On December 22, 2010, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability (Epstein Barr Syndrome [Mononucleosis] and Chronic Fatigue Syndrome), and age (47) when, on November 9, 2010, she received a "denial of her Reconsideration Request of her reasonable accommodation denial dated October 4, 2010." The Agency dismissed this EEO complaint on the basis that it is "merely a reiteration of or is inextricably intertwined with" a previous EEO complaint filed by Complainant which is currently pending before the EEOC.
ANALYSIS AND FINDINGS
Tide 29 of the Code of Federal Regulations (C.F.R.) � 1614.107(a)(l) requires an Agency to dismiss a claim that states the same claim that is pending before or has been decided by the Agency or EEOC. Where the actions complained about in an EEO complaint go to the merits of an identical claim under consideration in another forum, then the complaint is not actionable and must be dismissed. 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. Dep't of the Air Force, EEOC Appeal No 01955890 (April 5, 1996) rev'd on other EEOC Request No. 05960524 (Apr. 24, 1997).
The record shows that on January 4, 2010, Complainant requested the reasonable accommodation of "no travel more than six hours outside of the Eastern Time Zone for a period of six months" due to a medical condition. On approximately February 17, 2010, the Agency advised Complainant that her request for reasonable accommodation had been approved, but that the approved accommodation was that she would not be permitted to travel anywhere between January 3, 2010, and July 3, 2010. Accordingly, management informed Complainant that she would not be entitled to Administratively Uncontrollable Overtime (AUO) during that time-period. Complainant requested reconsideration of the accommodation provided, which was denied.
On April 15, 2010, Complainant filed Complaint No. HS-10-CBP-004404, alleging that the Agency discriminated against her on the bases of sex (female), age (46) and disability (Epstein Bair, Chronic Fatigue Syndrome, Sleep Apnea, hyperglycemia and interstitial cystitis) when, among other issues1, on January 22, 2010, she was placed on administrative duty status and informed that all travel and AUO was discontinued pending review of her medical documentation.2
On June 30, 2010, Complainant again requested an accommodation of "no travel exceeding six hours outside of the Eastern Time Zone for a period of six months." On October 4, 2010, the Agency denied Complainant's reasonable accommodation request. Complainant was, therefore, required to resume all travel requirements under her job description. On November 9, 2010, the Agency denied Complainant's request for reconsideration, which was sustained by the Executive Director of the Office of Diversity and Civil Rights on November 30, 2010. On the same day Complainant initiated EEO Counseling and on December 22, 2010, Complainant filed the current EEO complaint.
We conclude that the current EEO complaint is not identical to Complaint HS-10-CBP-004404 which involved a January 2010 request for an accommodation. The current EEO complaint involves a July 2010 request for accommodation. The two requests for accommodation involve different time frames, and although similar, they are thus not identical. Therefore, the Agency improperly dismissed the complaint on the grounds that it raises the same matter that was raised in a prior complaint.
CONCLUSION
The Agency's dismissal is REVERSED, this complaint is REMANDED for further processing in accordance with this decision and the ORDER below.
ORDER
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to Complainant that it has received the remanded claim 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 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 (K0610)
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 77960, Washington, DC 20013. 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 (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 (R0610)
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 (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
September 26, 2012
__________________
Date
1 The other issues alleged pertain more to a harassment claim, which the Agency does not assert is relevant herein.
2 This claim is currently pending before an EEOC Administrative Judge.
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01-2011-2482
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013