0120082240
06-04-2010
Ruby M. Ollivierre, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Pacific Area), Agency.
Ruby M. Ollivierre,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120082240
Agency No. 4F956002208
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated March 5, 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.
ISSUE PRESENTED
The issue presented is whether complainant has established that the
agency discriminated against her on the basis of disability (shoulder
impingement) when, on September 21, 2007, she was sent home due to "no
work available," and since November 1, 2007, she has not been accommodated
with work.
BACKGROUND
On September 21, 2007, complainant, a City Carrier at the Modesto,
California Post Office, requested EEO counseling. The parties thereafter
entered into a settlement agreement. Thereafter, complainant filed
a breach of settlement claim. On January 31, 2008, a Letter of
Determination was issued which concluded that the settlement had not
been breach. Complainant appealed this decision to the Commission. The
Commission found the agency to be in breach, and remanded complainant's
claims to the agency for further processing. Ruby M. Ollivierre v. United
States Postal Service, EEOC Appeal No. 0120081608 (May 1, 2008).
Subsequently, complainant filed a formal complaint on June 20, 2008
(Agency No. 4F-956-0202-07, Complaint 1), alleging that, based on her
disability (shoulder impingement), on September 21, 2007, she was sent
home due to "no work available," and since November 1, 2007, she has not
been accommodated with "productive work." Following an investigation,
the agency issued a final decision finding no discrimination on December
19, 2008.
In that decision, the agency found that assuming that complainant had
established a prima facie case of discrimination based on disability,
management articulated legitimate nondiscriminatory reason for their
actions namely, that work was not available within her very limited
restrictions. The reveals that complainant was limited to lifting only
two pounds. The agency maintained that there was nothing available
for complainant to do that was within her restrictions. The agency
found that complainant failed to show that the agency's reasons were
pretext for discrimination and failed to show that agency officials
harbored a discriminatory animus towards members of her protected basis.
Complainant did not appeal that decision.
While that complaint was pending, on February 18, 2008, complainant filed
a complaint in Agency No. 4F-956-0022-08 (Complaint 2), in which she
alleged that, since November 1, 2007, she has not been denied reasonable
accommodation and told to stay home. The agency dismissed Complaint 2
for stating a claim that had already been decided, pursuant to 29 C.F.R. �
1614.107(a)(1). It is from that decision that complainant now appeals.
CONTENTIONS ON APPEAL
On appeal, complainant argues the merits of Complaint 2, including
that her lifting restrictions have been relaxed but she has still not
been permitted to return to work. The agency argues that it correctly
dismissed Complaint 2 on the basis stated.
ANALYSIS and FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
an 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).
Based on a review of the record, the Commission finds that Complaint 2
states the same claim that has been previously decided by the agency in
Complaint 1, and was therefore correctly dismissed.
CONCLUSION
Accordingly, the agency's final decision dismissing this complaint is
AFFIRMED..
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 (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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
June 4, 2010
Date
2
0120082240
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120082240