0120180291
03-15-2018
Bart M,1 Complainant, v. Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Bart M,1
Complainant,
v.
Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120180291
Agency No. DEN170522SSA
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision (FAD) dated September 15, 2017, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims Specialist at an unspecified Agency facility in Denver, Colorado. On March 9, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), disability (unspecified physical and mental disabilities), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On March 2, 2017, Complainant's reasonable accommodation request was denied;
2. On March 3, 2017, Complainant's transfer request was denied;
3. Between March 10 and March 30, 2017, Complainant was subjected to harassment; and
4. On March 29, 2017, Complainant was terminated from his position.
The Agency dismissed the claims for stating the same claims as those raised in a previous complaint.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides for the dismissal of a complaint that states the same claim that is pending before or has been decided by the Commission or the Agency. To be dismissed as the "same claim," the present formal complaint and prior complaint must have involved identical matters. The Commission has consistently held that in order for a formal 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. Uniled States Postal Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996).
The record shows that Complainant filed a prior EEO complaint under Agency No. DEN-17-0383-SSA. The Accepted issues in that complaint were the following:
1. Whether the Agency failed to provide Complainant a reasonable accommodation based on disability (physical and mental) since November 2, 2016;
2. Whether Complainant was subjected to disparate treatment based on disability (physical and mental), age (over 40), reprisal (prior EEO activity), race (African-American), when on March 29, 2017, he was terminated from his position as a Claims Specialist;
3. Whether Complainant was subjected to disparate treatment based on disability (physical and mental), age (over 40), reprisal (prior EEO activity), race (African-American), when on January 27, 2017 he was placed on a Performance Plan;
4. Whether Complainant was subjected to harassment (non-sexual), based on disability (physical and mental), age (over 40), reprisal (prior EEO activity), race (African-American), since November 2, 2016 related to performance discussions, training, working conditions, and within grade increases; and
5. Whether the Agency subjected the Complainant to disparate treatment based on race (African American), disability (physical and mental) and reprisal (current and prior EEO activity), when on March 3, 2017, his request to be transferred was denied.
With regard to claim 1 of the instant complaint (denial of reasonable accommodation), the Agency argues that the prior complaint under Agency No. DEN-17-0383-SSA "covers all alleged incidents of failure to accommodate between November 2, 2016 and March 29, 2017." The record shows that the Agency issued an amended notice of accepted claims for prior claim No DEN-17-0383-SSA, dated September 13, 2017, just two days before the instant FAD. The amended notice describes claim 1 as above, using the "reasonable accommodation . . . since November 2, 2016" language. The Agency, however, has provided no additional corroborating evidence to support its claim that the March 2 incident is included in the prior claim.
With regard to claim 2, concerning Complainant's March 2, 2017 transfer request, the record shows that it is the same claim as claim 5 from the prior complaint.
With regard to claim 3, the Agency again argues that the "harassment . . . since November 2, 2016" language of claim 4 of the prior claim includes subsequent incidents of harassment including incidents occurring up to Complainant's removal on March 29, 2017. On appeal, Complainant argues that the Agency should also consider the March 30, 2017 incident that occurred the day after Complainant's termination. Again, however, other than the September 13, 2017 amended notice of accepted claims for DEN-17-0383-SSA, the Agency has not submitted sufficient evidence establishing that the March 10 and March 30 incidents are included in the prior complaint.
With regard to claim 4 (termination), Complainant on appeal agrees that this claim is identical to claim 2 under Agency No. DEN-17-0383-SSA and accepts the dismissal of this claim filed under Agency No. DEN-17-0522-SSA.
CONCLUSION
The record shows that claims 2 and 4 were previously raised. However, because the Agency has not submitted sufficient evidence establishing that claims 1 and 3 were raised in a prior complaint, we AFFIRM the Agency's dismissal in part and REVERSE in part, and we REMAND the complaint for further processing in according with this decision and the Order below.
ORDER
The Agency, if it has not already done so, shall include the incidents raised in claims 1 and 3 of the instant complaint, including the March 30, 2017 incident, in its investigation under Agency No. DEN-17-0383-SSA. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued.
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 (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 15, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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