Blanche Sandoval, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 21, 2009
0120091296 (E.E.O.C. May. 21, 2009)

0120091296

05-21-2009

Blanche Sandoval, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Blanche Sandoval,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091296

Agency No. 1F901000909

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated December 29, 2008, 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. and Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq. In her complaint, complainant alleged that she

was subjected to discrimination on the bases of disability and reprisal

for prior protected EEO activity when:

1. She was denied accommodation and her seniority was violated when she

was not permitted to work the Columbus holiday on October 13, 2008; and

2. As of December 5, 2008, complainant has not been permitted to have

input into her accommodation, nor has she been given an update on the

status of her assignment.

The agency dismissed the instant complaint for failure to state a

claim and for stating the same claim already decided by the agency or

Commission. In its notice of dismissal the agency noted that as a result

of the grievance settlement, complainant was paid for the holiday.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,

.106(a). The Commission's federal sector case precedent has long defined

an "aggrieved employee" as one who suffers a present harm or loss

with respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

Here, the Commission finds that complainant is alleging that she was not

permitted to work the Columbus Day holiday because of her disability and

that all employees on light or limited duty were not allowed to work on

the holiday. Although a grievance was filed on the matter, the grievance

did not address any discrimination claims. In addition, the Commission

notes that complainant wants such discrimination to stop and states

that she wants to be accommodated for the intentional discrimination.

Complainant also indicates that she wants to be accommodated. Moreover,

complainant is alleging that she was not allowed to work the holiday

in reprisal for a prior EEO complaint. Based on a fair reading of the

complaint and related documentation, we conclude that complainant has

alleged an injury or harm to a term, condition, or privilege of employment

for which there is a remedy. See Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994).

Accordingly, the agency's final decision dismissing complainant's

complaint is reversed the complaint is hereby remanded to the agency

for further processing in accordance with this decision and the Order

below.

Turning now to claim 2 regarding complainant's request for reasonable

accommodation, the Commission notes that 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).

Here, because we find that the agency improperly dismissed claim 1

regarding work on the Columbus Holiday, we find that claim 2 regarding

complainant's reasonable accommodation request is not identical to

matters previously addressed by the agency.

Accordingly, the agency's final decision dismissing complainant's

complaint is reversed the complaint is hereby remanded to the agency

for further processing in accordance with this decision and the Order

below.

ORDER (E0408)

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 (K0408)

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)

(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 (M0408)

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 (R0408)

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 (Z0408)

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

May 21, 2009

__

____________

Date

2

0120091296

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120091296