* * *, Complainant,
v.
John M. McHugh, Secretary, Department of the Army, Agency.
Appeal No. 0120142480
Agency No. ARRRAD14FEB00626
November 25, 2014
 
DECISION
 
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 19, 2014, 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.
  
BACKGROUND
 
At the time of events giving rise to this complaint, Complainant worked as a Heavy Mobile Equipment Mechanic Supervisor at the Agency's facility in Texarkana, Texas.
 
On February 24, 2014, Complainant initiated EEO Counselor contact. The EEO counseling report reflects that Complainant alleged that, on February 20. 2014, she received an email from another supervisor ("Supervisor D") requiring Complainant to be in contact with him, and to report to him daily on production. Complainant stated that such work-related contact with this supervisor created a discriminatory/retaliatory hostile work environment because she had previously filed an EEO complaint against this supervisor.
 
On April 2, 2014, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), age (46). and in reprisal for prior protected EEO activity when.
a. On March 13, 2014 Complainant's division chief interfered with her EEO counseling session when he stated that he did not intend to fire her, and disclosed information regarding the shift assignment of Supervisor D. Complainant contends that the division chief intended to demean her.
b. On February 21, 2014, a telephone call from Complainant's division chief to Complainant asking for the whereabouts of Supervisor D was erased from her caller ID.
c. On February 20, 2014, and March 3, 4, and 5, 2014, Complainant's division chief sent an email to all supervisors in the organization, except Complainant.
d. On various dates in January, February and March, 2014, Supervisor D interjected himself into Complainant's discussion with the Agency's Branch Chief.
e. On January 7, 2014, Complainant's division chief required Complainant to attend a meeting concerning her allegations against Supervisor D. Complainant further alleges that she was not permitted to have representation, that three management officials were also present, and she was denied her request to record the meeting.
f. On February 14, 2014, the tires on Complainant's automobile were punctured, while the vehicle was parked on Agency premises.
g. On January 8, 2013, Complainant's division chief failed to select her for promotion to the position of Heavy Mobile Equipment Mechanic Supervisor, WS-5803-10 position.
h. On September 12, 2012, the Agency failed to thoroughly investigate defamatory writing on the wall of the men's restroom about Complainant.
 
In its final decision, the Agency dismissed claims a-f in accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(2) for raising claims that had not been brought to the attention of an EEO Counselor and were not like or related to claims counseled. The Agency's final decision dismissed claims g and h in accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(1) for stating claims that had been previously addressed by the Agency or Commission.
 
This appeal followed.
  
ANALYSIS AND FINDINGS
  
Claims (a) - (f)
 
The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent pan, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of an EEO counselor, and is not like or related to a matter on which the complainant has received counseling. A later claim or complaint is "like or related" to the original complaint if the later claim or complaint adds to or clarifies the original complaint and/or could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. U.S. Postal Service, EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S Postal Service, EEOC Request No. 05891068 (Mar. 8, 1990). We find that the Agency improperly dismissed claims a-f on the grounds that Complainant failed to raise the matters with an EEO Counselor and that they are not related to a matter for which she had undergone EEO counseling.. Specifically, the report of the EEO Counselor indicates that Complainant sought counseling about having to provide her daily production and justification for not meeting that goal to Supervisor D against whom she had previously filed and EEO complaint. Complainant claims that this matter resulted in discriminatory/retaliatory harassment against her. In claims (a)-(f), Complainant alleged a variety of alleged harassing incidents, primarily relating to Supervisor D and a division director, with some events revolving around the EEO counseling she received on the instant complaint. The record therefore supports a determination that the uncounseled allegations add or clarify Complainant's harassment/hostile work environment claim that was the subject of EEO counseling, and could be reasonably expected to grow out of the counseled matter.
  
Claims (g) and (h)
 
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the agency shall dismiss a complaint that fails to state a claim under § 1614.103 or § 1614.106 (a), or 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 (April 24, 1997).
 
Here, a review of the record indicates that claims (g) and (h) were previously raised in Complainant's prior complaints identified as Agency Nos. ARRRAD13FEB00568 and ARRRAD120CT04350. Therein, Complainant raised concerns regarding her non-selection for promotion; claim (g), and the defamatory comments about her that were written on the wall of the men's restroom; claim (h). Upon review we find that claims (g) and (h) of the instant complaint are identical to those raised in Complainant's earlier complaints. The Agency's dismissal of these two claims, pursuant to EEOC Regulation 29 C.F.R. § 1614 107(a)(1) was proper.
  
CONCLUSION
 
Accordingly, the Agency's final decision dismissing claims (g) and (h) is AFFIRMED. However, the Agency's final decision dismissing claims (a) - (f) is REVERSED. Claims (a)-(f) are REMANDED to the Agency for further processing in accordance with the ORDER below.
  
ORDER (E0610)
 
The Agency is ordered to process the remanded claims (a - f) 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 (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 RLE A CIVIL ACTION (T0610)
 
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 me Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (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