U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hannah C.,1 Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Forest Service), Agency. Appeal No. 0120162350 Agency No. FS-2016-00380 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated June 28, 2016, 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. BACKGROUND During the periods at issue, Complainant worked as a Human Resources Assistant at the Agency's Human Resource Contact Center facility in Albuquerque, New Mexico. On March 10, 2016, Complainant filed a formal EEO complaint alleging that the subjected her to discrimination and harassment based on a physical disability (blind/kidney failure), when management failed to provide her the requisite equipment for her approved reasonable accommodation. On June 28, 2016, the Agency issued a final decision dismissing the instant complaint, reasoning that the instant claim was identical to a previously filed EEO complaint (Agency Complaint No. FS-2014-00745) by Complainant. In that complaint, Complainant alleged, among other things, that the Agency had failed to deliver on Complainant's reasonable accommodations between March 26, 2015 through October 9, 2015. The record shows that on December 15, 2015, Complainant and her Agency supervisors held a teleconference to discuss progress towards implementing her reasonable accommodations. According to Complainant, during the teleconference, the Agency promised to deliver an effectively accommodating desktop to Complainant by January 12, 2016. On March 31, 2016, Complainant filed the instant complaint (Agency No. FS-2016-00380), alleging that the Agency had failed to deliver as promised during the December 2015 teleconference. On June 28, 2016, the final Agency decision issued dismissing the instant complaint. This instant appeal followed. Complainant did not include a brief in support of her appeal or raise arguments to challenge the Agency's dismissal. ANALYSIS AND FINDINGS We find the Agency's dismissal of the instant complaint improper. 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. Nevertheless, the burden is on the Agency to establish that the complaints are identical. See Barker v. U.S. Postal Svc., EEOC Appeal No. 01990099 (Apr. 10, 2001); citing Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). The Agency must submit specific evidence regarding the former complaint, such as a counselor's report or copy of the formal complaint, to establish that it is identical to the instant complaint. See Barker, supra. Here, the Agency did indeed provide the amended FS-2014-00745 which it purports contains an identical complaint to FS-2016-00380. Nevertheless, the Agency did not meet its burden of establishing that complaint FS-2016-00380 and the amended FS-2014-00745 were so identical as to warrant dismissal of the second complaint. We disagree with the Agency that Jackson v. U. S. Postal Svc., EEOC Appeal No. 01A22485 is on-point. In that case, we found that another agency had properly dismissed a second complaint about denial of a leave of absence after the first complaint (also regarding denied leave of absence) had been dismissed for untimely formal filing. We find this case more in-line with decisions that different time periods alleged in a subsequent complaint sufficiently distinguish it from the allegation in the prior complaint. "Accordingly, the agency cannot dismiss the later complaint of a continuing violation simply on the grounds that the underlying issue is the same as that of a prior allegation of a pattern and practice . . . " See Vissing v. Nuclear Regulatory Comm'n, EEOC Request No. 05890584, (Aug. 31, 1989). An exhaustive review of the entire record distinguishes the timeframe for the allegations in the prior amended complaint (between March 26, 2015 and October 9, 2015) with that of instant complaint which concerns the Agency's failure to deliver effective accommodations between December 15, 2015, and February 9, 2016.2 Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this decision and the ORDER below. ORDER (E1016) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, unless the matter is otherwise resolved prior to that time. If 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 Complainant. If the Agency does not comply with the Commission's order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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, 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 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 (M0416) The Commission may, in its discretion, reconsider the decision in this case if 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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 22, 2016 __________________ 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 The Agency's final decision erroneously conflated the dates of the amended prior complaint with those dates that were the Complainant's focus in her instant complaint----namely December 15, 2015 through February 9, 2016. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120162350