U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Genaro D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120152495 Agency No. 1C371003215 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated June 22, 2015, dismissing his 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as an Electronic Technician at the Agency's facility in Knoxville, Tennessee. On February 27, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On May 23, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability, age, and reprisal for prior protected EEO activity when: 1. on October 30, 2014, Complainant notified management that he was scheduled to take part in a deposition relative to EEO complaint Agency Case No. 1C-378-0010-13 on October 31, 2014. Complainant was not paid for the four hours that he was at the deposition; and, 2. on February 23, 2015, Complainant was denied reasonable accommodation when management would not allow him to return to work. On June 22, 2015, the Agency dismissed Claim 1 pursuant to 29 C.F.R. § 1614.107(a)(8), stating that the instant case is an improper spin-off complaint of prior complaints, specifically that Claim 1 would have been more properly addressed within the appeal rights of Agency Case No. 1C-378-0010-13. The Agency also dismissed Claim 1 on the grounds of untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2), stating that Complainant did not request pre-complaint counseling until February 27, 2015, over 3 months after the allegedly discriminatory event. The Agency dismissed Claim 2 pursuant 29 C.F.R. § 1614.107(a)(1), stating that the instant complaint was the same matter as raised in Agency Case No. 1C-378-0010-13, and at the time of the appeal was currently pending before the Commission. The instant appeal followed. For the first time on appeal, Complainant attempts to amend the complaint by adding an allegation of hostile work environment and discrimination based on his race. Additionally, in regards to Claim 1, Complainant contends that he allowed management a reasonable amount of time to process the four hours due to him. Complainant states that it was not until February 15, 2015, that he had reasonable suspicion that the four hours still had not been processed. It was around this time that he emailed his Maintenance Manager regarding this issue. Upon receiving his Maintenance Manager's response, Complainant learned that his request had not been submitted for processing. Complainant contends that this issue was later resolved when the Agency processed the payment on July 3, 2015. Complainant also argues that the Agency is improperly denying him a reasonable accommodation. Complainant provides medical documentation on appeal regarding his reasonable accommodation request. ANALYSIS AND FINDINGS Claim 1: Untimely EEO Counselor Contact EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. EEOC regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000). Here, in regards to Claim 1, Complainant contacted the EEO Counselor on February 27, 2015, regarding an allegedly discriminatory event that occurred on October 30, 2014. However, on appeal, Complainant contends that he gave the Agency a reasonable amount of time to pay him the four hours identified in this claim. Complainant contends that he only developed reasonable suspicion when he emailed his Maintenance Manager on February 15, 2015, and discovered that the Agency still had not processed his pay. While a review of the record does not contain any documentation of these emails, the EEO Dispute Resolution Specialist's Inquiry Report does have a statement from the Maintenance Manager stating that "he could not enter any type of hours for the [Complainant] without evidence of the allege[d] meeting." The Inquiry Report also contains a statement that on or about May 5, 2015, Complainant's attorney and the Maintenance Manager confirmed Complainant's participation in the October 31, 2014 deposition, and that the Maintenance Manager agreed to submit an adjustment payment for the four hours due to Complainant. Given the specific circumstances of this individual situation, we find that Complainant provided sufficient justification for extending the time limit for contacting an EEO Counselor. Claim 1: Dismissal as a "Spin-off" Complaint Additionally, the Agency dismissed the Claim 1, stating that the instant case was an improper spin-off complaint of prior complaints, and that Claim 1 would have been more properly addressed within the appeal rights of Agency Case No. 1C-378-0010-13. However, we determine that the subject claim is not a spin-off complaint. We acknowledge that this claim indeed references a separate complaint. However, the essence of claim 1 is the Agency's purported denial of compensation to Complainant to which he determines he is entitled, following his taking time to attend a deposition. We determined that this states a justiciable claim. Claim 2: Dismissal for Stating Same Claim Previously Raised The Agency dismissed Claim 2 on the grounds that it stated the same claims previously decided by the agency or Commission. 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). Here, despite the Agency's pronouncements that Claim 2 raises the same matter as was raised in Agency Case No. 1C-378-0010-13, the record is devoid of any documentation demonstrating this. Clearly, it is the burden of an agency to have evidence or proof in support of its final decision. See Marshall v. Department of the Navy, EEOC Request No. 05910685 (September 6, 1991). Accordingly, we REVERSE the Agency's final decision dismissing Complainant's formal complaint, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. Finally, we note that for the first time on appeal, Complainant addresses additional matters which were not raised in the formal complaint. If Complainant wishes to pursue additional matters of alleged discrimination, he is advised to contact an Agency EEO Counselor. 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 (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations December 2, 2015 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152495 2 0120152495 7 0120152495