0120083344
11-19-2009
Karen Runnymede-Piper, Complainant, v. Ken L. Salazar, Secretary, Department of the Interior, Agency.
Karen Runnymede-Piper,
Complainant,
v.
Ken L. Salazar,
Secretary,
Department of the Interior,
Agency.
Appeal No. 0120083344
Agency No. OS080206
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated July 10, 2008, 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. Upon review, the Commission finds that complainant's
complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
for stating the same claim that is pending before or has been decided
by the agency or Commission.
In her instant complaint, complainant alleged that she was subjected to
a hostile work environment on the bases of disability (perceived mental)
and reprisal for prior protected EEO activity when from May 2000 to the
present:
1. She was assigned work assignments that were not commensurate with
her grade level and experience;
2. She was placed under the supervision of junior employees;
3. She was assigned relatively few projects of any kind; and
4. Her advancement possibilities were essentially eliminated.
The agency dismissed the complaint pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(1) for stating the same claim as that raised in a previously
filed EEO complaint. In its final decision, the agency indicated that
in previously filed Agency Case No. OS-07-0158, complainant alleged
that she was subjected to a hostile work environment on the bases of
disability and reprisal. The agency maintains that the previously filed
complaint and the instant complaint allege essentially the same matters.
As such, the agency dismissed the instant complaint accordingly.
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).
Commission records in this matter disclose that complainant's prior
complaint, addressed the following claim:
Whether the agency subjected her to discrimination based on a perceived
mental disability and in reprisal for prior EEO activity when during
the period of October 30, 2006 to December 14, 2006, the agency failed
to assign her work according to her grade level.
We conclude that the agency has not established that the two claims,
while similar, are "identical." On appeal, complainant argues that
the previously filed complaint addresses incidents occurring between
October 30, 2006 and December 14, 2006 and not from May 2000 to the
present as stated in the instant complaint. In addition, complainant
maintains that the previously filed complaint contains no reference to a
hostile work environment as in the instant complaint, nor does it raise
concerns regarding being under the supervision of junior employees. Here,
complainant has established that the two complaints are not "identical"
as addressed above. Instead of dismissing the complaint, the agency
should have consolidated the two complaints for further processing.
29 C.F.R. � 1614.606.
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 complaint in accordance
with 29 C.F.R. � 1614.108 et seq. 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 (K1208)
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 (M1208)
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 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 (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 (Z1008)
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
November 19, 2009
__________________
Date
2
0120083344
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120083344