0120120683
05-15-2012
Bonnie J. Herron, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Bonnie J. Herron,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120120683
Agency No. 1K301001811
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 19, 2011, dismissing her complaint of unlawful employment discrimination in violation of 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 Supervisor, Distribution Operations, at the Agency's Processing and Distribution Center facility in Atlanta, Georgia.
On June 14, 2011, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of disability, age (66), and reprisal for prior protected activity when she was forced to retire on May 1, 2010. Specifically, Complainant alleged that, "[b]ecause of the ongoing retaliations, harassment and blatantly (sic) disregard for my medical disability and physical limitations the aforementioned management officials forced me to involuntarily retire from service." In a statement attached to Complainant's formal complaint, she identifies the "ongoing harassment" as follows:
(1) on January 10, 2010, she received an email message instructing her to remove her personal items from an office she had been assigned to;
(2) on January 29, 2010, her modified job offer was rescinded;
(3) an Agency official sent intimidating information about Complainant's on-the-job injury to the Injury Compensation Office;
(4) an Agency official repeatedly asked Complainant when she was going to retire; and
(5) an Agency official telephoned her home shouting and using profanity while Complainant was on scheduled leave.
The record discloses that Complainant had filed an earlier EEO complaint, identified as Agency No. 1H-301-0022-10, alleging that she had been subjected to discrimination based on her age, disability and in reprisal for prior protected when:
(1) [Named individual] notified Complainant that the her modified job offer was being rescinded;
(2) [Named individual] sent intimidating information to [named individual] about Complainant's injury;
(3) [Named individual] was intimidating;
(4) [Supervisor] sent Complainant an email asking Complainant to remove all of her personal items; and
(5) [Named individual] telephoned Complainant at home talking down to her and using profanity.
The Agency dismissed the complaint at issue here, pursuant to 29 C.F.R. � 1614.107(a)(1), for stating the same claim as that raised in Agency Complaint No. 1H-301-0022-10. The instant appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 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).
Upon review, the Commission finds that in the instant complaint, Complainant has raised a claim of constructive discharge because of discriminatory harassment. Although the alleged harassment that she asserts prompted her departure from the Agency is the same as that alleged in Agency Complaint No. 1H-301-0022-10, she did not additionally raise a constructive discharge claim in that complaint. Accordingly, because we find that Complainant's constructive discharge claim is inextricably intertwined with her prior complaint, we order this issue joined with that prior complaint as an amendment for investigation and further processing.
The Agency's dismissal of Complainant's constructive discharge claim is REVERSED and the claim is REMANDED to the Agency as an amendment to her harassment claims in Agency Complaint No. 1H-301-0022-10.
ORDER
The Agency is ordered to amend Agency Complaint No. 1H-301-0022-10 to include the remanded constructive discharge claim. The Agency shall acknowledge to the Complainant that it has received the remanded claim and amended Agency Complaint No. 1H-301-0022-10 within thirty (30) calendar days of the date this decision becomes final.
A copy of the Agency's letter to Complainant 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
May 15, 2012
__________________
Date
2
0120120683
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120683