/ U.S.EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Fedenl Operations P.O.Bo:s: 77960 Washington, DC 20013 Devon H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120162030 Agency No. 10-781.()()39-16 DECISION Complairuint filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated May 2, 2016, dismissing a formal complaint of unlawful employment discrimination alleging violations of Title Vll of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended. 29 U.S.C. § 791 et seq., and the Age Discrimination inEmployment Act of 1967 (ADEA}, as amended, 29 U.S.C. §621 et seq. BACKGROUND During the period at issue, Complainant worked as a Mail Processing Clerk at the Agency's Processing and Distribution Center in San Antonio, Texas. On April 11, 2016, Complainant filed a formal EEO complaint claiming discrimination on the bases of race/national origin (Mexican American), disability, age (55), and in reprisal for prior protected EEO activity when, since March 2014, Complainant's requested accommodation of 1 This case bas 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 0120162030 light duty has been denied and, as a result, he has not been provided with work within his medical restrictions. On May 2, 2016, the Agency issued a final decision dismissing the complaint. The Agency found that Complainant had previously alleged the same matter regarding an accommodation denial in a complaint which the Agency identified under case number IG-781-0004-14. The Agency determined that, on January 7, 2015, an EEOC Administrative Judge (AJ) issued a decision dismissing Complainant's complaint in case number 10-781-0004-14. Therefore. the Agency dismissed Complainant'scomplaint as being the same claim that has am:ady beendecided by the Agency or Commission, pursuant to 29 C.F.R. 1614.107(aXI). The record in this case contains the AJ's Order Dismissing Complaint, in Case No. 10-781- 0004-14 dated January 7 2015. Therein, the AJ determined that the claim at issue was Complainant not being provided light duty work in March 2013, and again in May 2013. The AJ dismissed the fonnal complaint on the grounds of untimely EEO contact. On January 22, 2015, the Agency issued a final action implementing the AJ's dismissal. The Agency also determined that Complainant' s request for pre-complaint counseling was made on February 26, 2016, which it determined was approximately two years after Complainant first became aware of the reasonable accommodation denials. Therefore, the Agency also dismissed Complainant's fonnal complaint on the grounds of untimely EEO Counselor contact, pursuant to 9 C.F.R. 1614.107(a) (2). i '.Jbe instant appeal followed. Complainant did not raise any new contentions on appeal. ANALYSIS AND FINDINGS bismissal: Claim Raised in Prior Complain/ the EEOC regulation set forth at 29 C.F.R. § 1614.107(aXl) 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 clements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. Jackson y. Department of the Air Force, EEOC Appeal No 01955890 (April 5, 1996) rev'd on other grounds EEOC Request No. 05960524 (April 24, 1997). We have reviewed the AJ decision and final action in Agency Case No. 10-781-0004-14, and find that the matter identified in the complaint in that case is not identical intime to the matter raised in the subject complaint. Specifically, the AJ in lG-781-0004-14 identified incidents in March and May 2013, while the matters identified in the instant fonnal complaint arc later in time. The Agency's dismissal on these grounds is improper. 3 0120162030 Untimely EEO Co1111Se/or Con/act EEOC Regulation 29 C.F.R. §1614.107(a)(2) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) calendar days of· an alleged discriminatory event. the effective date of an alleged discriminatory personnel action, or the date that the aggrieved person knew or reasonably should have known of the discriminatory event or personnel action. The Agency improperly dismissed Complainant's claim on the grounds of untimely EEO Counselor contact, arguing that Complainant bas alleged that be bas been continuously denied accommodation since March 2014. We find that Complainant's claim addresses an allegation of ongoing reasonable accommodation denial and should be construed as timely raised. See Complainant v. Deo't of Health and Human Serv. • EEOC Appeal No. 0120130602 (Sept. 12, 2014) (agency improperly dismissed EEO complaint for untimely EEO Counselor contact when management continued to ignore complainant's requests for reasonable accommodation, which complainant asserted were still ongoing). The Commission bas stated that because an employer bas an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it. See "Threshold Issues," EEOC Compliance Manual, at 2-73 (revised July 21, 2005). cconlingly, we REVERSE the Agency's final decision dismissing Complainant's formal Complaint on the two grounds discussed above, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. I, ORDER (E0610) The Agency is otdered to process the remanded claim in accordance with 29 C.F.R. § 1614.108 seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) a1endar days of the date this decision becomes final. The Agency Shall issue to Complainant a copy of the investigative file and also sbaJl 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. Ifthe Complainant requests a final decision without a bearing, 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, 4 0120162030 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 Ifthe 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.SOJ(a). The Complainant also bas the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.SOJ(g). Alternatively, the Complainant bas the right to file a civil action on the iinderlying 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). U the Complainant flies a civil action, the administrative processing of the complaint, induding any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. STATEMENT OF RIGlffS - ON APPEAL RECONSIDERATION CM0416) I I . rrhe Commission may, in its discretion, reconsider the dei:ision in this case ifthe Complainant or e Agency submits a written request containing arguments or evidence which tend to establish t: I. The appellate decision involved a clearly erroneous interpretation of material fact I or law; or I 2. The appellate decision will have a substantial impact on the policies, practices, or i operations of the Agency. to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar cbys of RC:eipt of this decision or within hi·enty (20) calendar days of m:eipt of another party's · ely request for rcconsideration. 29 C.F.R. § 1614.405; I ent rtuni M ent Directive for 29 C.F.R. Part (EEO MD-110), at Chap. 9 § VIl.B (Aug. S , 2015); All and arguments must be submitted to the Director, Office of Federal OperatiJns, F.qual F.mployment Opportunity Commission. The requests may be submitted via rcgular;mail to P.O.Box 77960, Washington, DC 20013, or by certified mail to 131M Street, NE,Washington, DC 20507. Inthe absence of a legible postmark, the request to reconsider shall be deemCd timely filed if it is received by mail within five days of the expiration of the applicable filing pj:riod. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service orl.the other party. Failure to file within the time period will result in dismiJai of your request for reconsideration as untimely, unless extenuating circwnstances prevented Hie timely filing of the request Any supporting documentation must be submitted with your request for reconsideration. The s 0120162030 Commission will consider requests for reconsideration filed after the deadline only in very limited circwnstances. See 29 C.F.R. § l6l4.604(c). COMPLAINANTS RIGIIT TO FILE A CIVIL ACDON (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, ifyou 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. Ifyou 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 tide. Failure to do so may result in the dismissal of your csse. 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 (Z081S) you want to file a civil action but cannot pay the fees, costs, or security to do so, you may tcquest permission from the court to pioceed with the civil action without paying these fees or sts. Similarly, if you cannot afford an attorney to tcprcsent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of tourt costs or appointment of au 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). I FOR THE COMMISSION: Office of Federal Operations SEP 0 1 2016 Date