U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Catheryn P.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Finance & Accounting Service), Agency. Appeal No. 0120180922 Agency No. DFAS000052018 DECISION Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's December 27, 2017, dismissal of 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. and Section 501 of the Rehabilitation Act of 1973 "(Rehabilitation Act"), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Procurement Analyst (GS-12), in the Contract Policy and Compliance office at the Agency's Contract Services Directorate in Indianapolis, Indiana. On November 21, 2017, Complainant filed a formal complaint alleging that discrimination by the Agency on the bases of disability (physical and mental) and reprisal (prior protected activity)2 when: 1. On or about September 25, 2017, she became aware that Management improperly altered her time and attendance records, causing her to receive a billing statement from DFAS-IN/DEBT AND CLAIMS for $1,108.82 for overpayment because of "time and attendance change(s) for the pay period ending 03/04/2017," and 2. On or about October 25, 2017, she became aware that Management improperly altered her time and attendance records, causing her to receive a billing statement from DFAS-IN/DEBT AND CLAIMS for overpayment for the pay period ending April 1, 2017, increasing her debt by $2,489.54. Throughout 2016 and into 2017, Complainant's first and second level supervisors ("S1" and "S2") denied many of her requests for sick leave and advance sick leave for matters related to her disabilities. When Complainant still failed to show up to work, despite S1 and S2's denials of her requests, they recorded her attendance as Absent Without Leave ("AWOL"). Complainant was ultimately removed from employment because of the AWOL on her time and attendance record on February 24, 2017. On February 7, 2017, believing S1 and S2 were denying her leave requests as retaliation for naming them in a prior in EEO complaint that was still open and pending a hearing ("Complaint 1"), Complainant filed a new EEO complaint ("Complaint 2"). Claim 1(a) for Complaint 2 alleged: "from approximately July 25, 2016, [Complainant's] timesheets were changed from leave without pay to absence without leave ("AWOL")." On or around March 21, 2017, Complainant amended Complaint 2 to include her removal as well, which she also raised with the Merits System Protection Board ("MSPB"). Complaint 2 did not allege any additional actions by the Agency after the date of her removal. On or around September 25, 2017 and October 25, 2017, Complainant was billed for overpayment of sick leave for the pay periods ending on March 4, 2017 and April 1, 2017, even though S1 and S2 never granted her advance sick leave request for those dates. Complainant requested her time and attendance records, but the Agency did not provide them. Complainant initiated this complaint, reasoning that after her removal, S1 and S2 engaged in additional retaliation by improperly modifying her time and attendance records to reflect "sick leave" instead of "AWOL." Complainant contends that had she "been granted Advance Sick Leave, she would have been obligated to work off the balance. Instead, [she] was classified as AWOL, as she was never granted the sick leave. AWOL does not result in debt." Thus, S1 and S2 allegedly caused her to have to pay the Agency "earnings she never received." S1 and S2 denied making any changes to Complainant's time and attendance record except for a correction to her separation date, which had initially read February 3, 2017, to the correct date of February 24, 2017, resulting in Complainant receiving an additional payment for 8 hours. According to the Branch Chief for Debt Processing, DFAS-Cleveland, the entity that issued the billing statements, the statements Complainant received were automatically generated by the payroll system based the debt on "negative sick leave at the time of her separation." We note that the Branch Chief stated that the debit was based on the pay period ending March 18, 2017. The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Specifically, the Agency found Complainant's allegations improperly raised the same issue she raised in Claim 1(a) for Complaint 2. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of a complaint that states the same claim that is pending before or has been decided by the Commission or the Agency. To be dismissed as the "same claim," the present formal complaint and prior complaint must have involved identical matters. The Commission has consistently held that in order for a formal 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. United States Postal Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996). The Agency erred in its finding that Complainant brought the same claim in the instant complaint as she did in Claim 1(a) of Complaint 2. The Agency argues that in both instances, Complainant is alleging that "DFAS officials changed her time and attendance records to impact her pay status." However, it has long been established that "identical" does not mean "similar." See Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120141204 (Jun. 10, 2014). Complaint 2 alleges that "from approximately July 25, 2016" S1 and S2 changed Complainant's status from "sick leave" to "AWOL," which ultimately resulted in her February 24, 2017 removal. There is no indication that Complaint 2 applies to events that occurred after Complainant's removal. For the instant complaint, S1 and S2's alleged actions occurred after Complainant's removal, and concern alleged alterations to Complainant's attendance status for the pay periods ending on March 4, 2017 and April 1, 2017, which are also after Complainant's removal. The instant point alleges that S1 and S2 changed Complainant's "AWOL" status to "sick leave" so that she would be billed for earnings she never received. Hence, the instant complaint differs from Complaint 2 and both tie and incident. Moreover, the alleged retaliation for the instant complaint arose from Complainant's EEO activity associated with Complaint 2, whereas the retaliation alleged for Claim 1(a) in Complaint 2 arose from Complainant's EEO activity related to Complaint 1. CONCLUSION Accordingly, the Agency's decision is REVERSE the Agency's decision and REMAND the matter for further processing in accordance with this Decision and the following Order.3 ORDER (E1016) 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 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 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 (K0617) 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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 June 7, 2018 __________________ 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 EEOC Hearing Nos. 470201800144X, Agency No. DFAS000782016 ("Complaint 1"), and 470201800171U, Agency No. DFAS000342017 ("Complaint 2"), both open and pending a hearing, as of the date of this Decision. 3 As the instant complaint is related to Complaint 2 (we note that on appeal, Complainant describes the instant complaint as evidence of "continuous and pervasive discrimination" connected to Complaint 2), either party may file a "Motion to Amend" with the Administrative Judge ("AJ") assigned to Complaint 2, requesting to consolidate this complaint with Complaint 2, to be granted at the AJ's discretion. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120180922 5 0120180922