0120103120
10-19-2010
Maria S. Kavouras, Complainant, v. Lisa P. Jackson, Administrator, Environmental Protection Agency, Agency.
Maria S. Kavouras,
Complainant,
v.
Lisa P. Jackson,
Administrator,
Environmental Protection Agency,
Agency.
Appeal No. 0120103120
Agency No. 2009-0051-R11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 30, 2009, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission REVERSES the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency properly dismissed Complainant's complaint for stating the same claim that is pending before or has been decided by the Agency or Commission.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Attorney-Advisor, GS-15, at the Agency's Office of General Counsel (OGC) in Cincinnati, Ohio. Formal Complaint, at 1. In the instant complaint filed on May 28, 2009, Complainant alleged that the Agency subjected her to discrimination on the bases of sex (female) and age (51). Id. In her formal complaint, Complainant cited January 29, 2009 as the date on which the most recent alleged discrimination occurred, but explained that "[e]very day in which I perform duties outside of the substantive legal practice area of procurement law when other similarly situated employees who are in the same practice group are not required to do so constitute[s] a continuing violation." Id. In a narrative attachment to her formal complaint, Complainant described her discrimination claim as the following:
Despite being reassigned to the Procurement Law Practice Group (PLPG) I am required to continue to provide legal services ... in all the substantive legal subject matter areas, besides procurement law, covered by attorneys ... However, the other attorneys assigned to the [PLPG] are not required to work in these other substantive legal subject matter areas. Additionally, other attorneys who are assigned to work in the [PLPG] have been allowed to elect to perform work in other legal subject matter areas outside of procurement law if they so desire or to work only in the procurement law area. However, I have been advised that I cannot restrict my work assignments to only procurement law or elect what, if any, other legal subject matter areas I would like to work in. Because I have been unable to focus my work effort in the procurement law areas like my colleagues do, it has affected my performance evaluation(s), opportunities for advancement, and created unnecessary stress. Id. at 2.
The EEO Counselor's Report reveals that Complainant named two management officials as the responsible parties: (1) the Deputy Associate General Counsel, OGC - Civil Rights and Finance Law Office (CRFLO); and (2) the Acting General Counsel, OGC. EEO Counselor's Report, at 2-4. In addition, the EEO Counselor's Report noted that the "beginning of discriminatory actions" occurred when Complainant received an e-mail from the Deputy Associate General Counsel stating that OGC management wanted her to continue in what she (Complainant) viewed as an impossible work assignment situation that was very different from what was expected of other Attorney-Advisors. Id. at 2.
The Agency defined Complainant's complaint as alleging discrimination "when [she was] assigned to the [PLPG] and every day that [she is] asked to perform the duties of that assignment." Agency's June 30, 2009 Final Decision (FAD), at 1. The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for stating the same claim that had been decided by the Agency in its September 30, 2008, and April 27, 2009, final decisions.1 Id. The Agency found that on September 19, 2007, the issue regarding Complainant's reassignment to this position was previously accepted for investigation as part of Agency No. 2007-0051-R11. Id. at 2. To support its dismissal, the Agency cited portions of two documents from Agency No. 2007-0051-R11. First, the Agency referenced Complainant's written statement attached to her formal complaint in which she stated, "Based on our discussions, it is my understanding that while a decision has been made to place the Cincinnati Practice Group under the management of the Assistant General Counsel for the [PLPG], it does not appear that there is any contemplation of removing or otherwise limiting any of the work being handled by the Cincinnati Practice Group." Id. Second, the Agency referenced its September 30, 2008, final decision in which it noted, "Complainant states that as a result of the reassignment she was placed under the [PLPG], although she does not do only procurement work." Id.
CONTENTIONS ON APPEAL
On appeal,2 Complainant asserts that the instant complaint is not identical to her prior complaint, Agency No. 2007-0051-R11, because the two complaints cover different time periods, are based on different alleged discriminatory actions, and involve different responsible management officials. Complainant's Appeal Brief, at 4-5. In addition, Complainant notes that the Agency's similar assignment of case numbers, differing by only a single digit, could give the erroneous appearance that the instant complaint is identical to, or part and parcel of, the prior complaint. Id. at 4. Finally, Complainant requests that we reinstate the instant complaint. Id. at 5. The Agency did not submit a response to the appeal.
ANALYSIS AND FINDINGS
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 Dep't of the Air Force, EEOC Appeal No. 01955890 (Apr. 5, 1996), rev'd on other grounds, EEOC Request No. 05960524 (Apr. 24, 1997).
As an initial matter, we observe that the Agency has failed to provide any documentation regarding the contents of Complainant's prior complaint, Agency No. 2007-0051-R11, in response to the instant appeal. However, we note that we have access to the record in the prior complaint as a result of the Commission's decision in EEOC Appeal No. 0120090440 (Aug. 19, 2010).
In the instant case, we find that the Agency improperly dismissed Complainant's complaint for stating the same claim that is pending before or has been decided by the Agency or Commission. We find that Complainant's instant complaint is not identical to Complainant's prior complaint because the elements of the instant complaint are not identical to the elements of the prior complaint in time, place, incident, and parties. Regarding Complainant's prior complaint, the prior record shows that the Agency accepted the following claims for investigation on September 19, 2007: (1) on February 21, 2007, Complainant was reassigned as an Attorney-Advisor from an Assistant General Counsel; and (2) at Complainant's PARS review, she received a Fully Successful rating instead of the Exceeds Expectations rating that she felt she deserved. In addition, the prior record reveals that Complainant named the Associate General Counsel in the OGC - CRFLO as the responsible management official. Further, the prior record shows that the two references to Complainant's work in procurement law cited in the Agency's final decision were merely incidental and that the focus of the prior complaint and investigation remained on Complainant's reassignment and PARS review. In contrast, regarding Complainant's instant complaint, the record shows that Complainant alleged that the Agency required her to provide legal services in substantive areas outside of procurement law, whereas other Attorney-Advisors in her practice group were not required to do so. Formal Complaint, at 2; EEO Counselor's Report, at 2-4. In addition, the record reveals that Complainant named the Deputy Associate General Counsel, OGC - CRFLO and the Acting General Counsel, OGC as the responsible management officials. EEO Counselor's Report, at 2-4. Finally, we find that the Agency's definition of Complainant's claim ("discriminated against ... when [she was] assigned to the [PLPG] and every day that [she is] asked to perform the duties of that assignment") does not capture the crux of her complaint. FAD, at 1. While the Agency's characterization of Complainant's claim focuses on her reassignment to the PLPG, the record shows that Complainant's allegations concern the substance and scope of her work assignments after her reassignment to the PLPG, in comparison to similarly-situated co-workers in the PLPG. Formal Complaint, at 2; EEO Counselor's Report, at 2-4. As a result, we find that Complainant's instant complaint does not state the same claim that is pending before or has been decided by the Agency or Commission.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final decision and REMAND the complaint for further processing in accordance with the Order below.
ORDER (E0610)
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 (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
October 19, 2010
Date
1 The record does not contain a copy of the Agency's September 30, 2008, or April 27, 2009, final decisions. However, the Agency's September 30, 2008, final decision appears as part of the record in EEOC Appeal No. 0120090440 (Aug. 19, 2010).
2 The record reflects that Complainant filed her Notice of Appeal on August 10, 2009. In an acknowledgment letter dated August 18, 2010, the Commission acknowledged receipt of the appeal but noted that, due to clerical error, the appeal was not docketed until August 18, 2010.
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0120103120
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103120