01980336
02-10-2000
Dennis M. Patterson, Complainant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Dennis M. Patterson, )
Complainant, )
)
v. ) Appeal No. 01980336
) Agency No. 97(202) WAPA
Bill Richardson, )
Secretary, )
Department of Energy, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination
in violation of the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. �621 et seq., and Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq.<1> The final agency decision
was issued on September 29, 1997. The appeal was postmarked October 21,
1997. Accordingly, the appeal is timely (see 64 Fed. Reg. 37,644, 37,659
(1999) (to be codified and hereinafter cited as 29 C.F.R. � 1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
the complaint on the grounds that it states the same claim as that
pending before the agency.
BACKGROUND
Complainant initiated contact with an EEO Counselor on September 5, 1997.
On September 15, 1997, complainant filed a formal EEO complaint wherein
he claimed that he was subjected to discrimination on the bases of his
sex (male), age (42), and in reprisal for his previous EEO activity
when a younger female apprentice was provided field training that he
had requested, thus decreasing his future ability to compete for other
positions. Complainant indicated that the discrimination specifically at
issue commenced on August 11, 1997, when the younger female apprentice
was temporarily assigned to the field office in Cheyenne, Wyoming.
Complainant stated that she would afterwards be assigned for field work
in Cody, Wyoming until September 19, 1997. According to complainant,
the apprentice is performing preventative maintenance on microwave radio
equipment and is obtaining experience of a degree and quality to which
he has not been exposed.
The record reveals that complainant filed a previous complaint (Agency
No. 97(37) WAPA) on November 7, 1996. A claim set forth in that complaint
was that complainant was discriminated against on the basis of his age
when a younger female apprentice was provided better field training
than he received, thus decreasing his future ability to compete for
other positions.
In its final decision, the agency dismissed the complaint on the grounds
that it set forth the same claim as that pending before the agency.
According to the agency, the instant complaint states essentially the
same claim that is pending before the agency in Agency No. 97(37) WAPA.
On appeal, complainant argues that the instant complaint is based on
agency actions that began on August 11, 1997. Complainant states that
his current claims were not included in the complaint filed on November 7,
1996. Further, complainant states that he withdrew the claim in his prior
complaint that is similar to that set forth in the instant complaint.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. �1614.107(a)(1)) provides that the agency shall dismiss
a complaint or a portion of a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
In the present case, complainant claims that he was subjected to
discrimination when he did not receive a field training opportunity
that he had requested. Complainant claimed that a younger female
apprentice received this field training beginning on August 11, 1997.
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 of the instant matter, we note that both the instant
claim and the claim from the prior complaint allege that complainant was
denied field training in favor of a younger female apprentice. However,
the incident at issue in the instant complaint relates to training that
commenced on August 11, 1997, long after the occurrence of the matter
set forth in the prior complaint. We find that the instant complaint
is not identical to the prior complaint as the claims reflect separate
incidents that occurred on different dates. Accordingly, the agency's
decision to dismiss the complaint on the aforementioned grounds was
improper and is REVERSED. This complaint is hereby REMANDED for further
processing pursuant to the ORDER below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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 (K1199)
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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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
(R1199)
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 (Z1199)
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:
February 10, 2000
_______________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.