0120083679
02-06-2009
Teresa L. Mills,
Complainant,
v.
Arne Duncan,
Secretary,
Department of Education,
Agency.
Appeal No. 0120083679
Agency No. ED-2008-35-00
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision 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.
On April 30, 2008, complainant filed a formal EEO complaint. Therein,
complainant alleged that she was subjected to discrimination on the
bases of sex (female) and reprisal for prior protected EEO activity.
In its final decision dated July 25, 2008, the agency framed complainant's
claims in the following fashion:
Whether the Complainant was discriminated against on January 22,
2008 and April 14, 2008, on the bases of sex (female) and reprisal
(previous EEO activity) when she was denied a flexiplace agreement and
subsequently charged 8 hours of leave without pay when her supervisor
was nonresponsive to her request for flexiplace.
The agency dismissed the complaint on the grounds that it raised the same
claim that was raised in a prior complaint (Agency No. ED-2006-05-00),
wherein complainant alleged that she was discriminated against on the
bases of disability and reprisal when on September 27, 2005, she was
denied reasonable accommodation.
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.
The Commission determines that the claim raised in the prior complaint
(Agency No. ED-2006-05-00) and the claim raised in the instant complaint
are not identical. Specifically, the record reflects that the matter
raised in Agency No. ED-2006-05-00, addressed the agency's denial of
complainant's request for reasonable accommodation. In contrast, the
instant complaint addresses the agency's denial of complainant's request
to work at home under the agency's Flexiplace Program. We noted that
while complainant's prior complaint was based on complainant's disability
and reprisal, the instant complaint was based on complainant's sex and
reprisal. Furthermore, both incidents occurred on different dates (denial
of reasonable accommodation in 2005 and denial of flexiplace in 2008),
thus they are not identical in time. 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).
Therefore, the agency improperly dismissed the complaint on the grounds
that it raises the same matter that was raised in a prior complaint.
As a final matter we noted that the agency requests that the instant
appeal be dismissed as moot.
We find that complainant's allegation was not rendered moot, at a minimum,
because complainant made a claim in her formal complaint for compensatory
damages. See Simmons v. U.S. Postal Service, EEOC Appeal No. 01965923
(June 24, 1997). The Commission has held that an agency must address the
issue of compensatory damages when the complainant presents objective
evidence that he incurred compensatory damages and that the damages
were related to the alleged discrimination. See Jackson v. U.S. Postal
Service, EEOC Appeal No. 01923399 (November 12, 1992), request to reopen
denied, EEOC Request No. 05930306 (February 1, 1993). Consequently,
where, as here, complainant requests compensatory damages during the
administrative processing of her complaint, the agency is obliged to
request from the complainant, objective evidence of such damages. In this
case, the record does not show that the agency met its obligation under
Jackson to address appellant's claim for compensatory damages. Should
complainant prevail in her allegation, the possibility of an award for
compensatory damages exists, and appellant's allegation is not moot.
See Glover v. U.S. Postal Service, EEOC Appeal No. 01930696 (December 9,
1993).
Accordingly, the agency's decision dismissing the complaint was improper.
The complaint is hereby REVERSED and REMANDED for further processing in
accordance with this decision and the ORDER below.
ORDER (E0408)
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 (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
February 6, 2009
__________________
Date
2
0120083679
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120083679