EEOC Appeal 2020001950

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wilbert R., 1
Complainant,
v.
Robert Wilkie,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 2020001950
Agency No. 200I-0316-2020100879
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated December 19, 2019, dismissing a formal
complaint of unlawful employment discrimination in violation of 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 a Decision Review Officer, GS 13 at the
Agency’s Atlanta VA Regional Office in Atlanta, Georgia.
On December 12, 2019, Complainant filed a formal EEO complaint. 	As summarized by the
Agency, Complainant’s alleged that the Agency discriminated against him based on his disability
since November 30, 2018, and ongoing, 2 when Complainant and the other Decision Review
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 In the final decision, the Agency clarified that Complainant initially indicated in his formal
complaint that he had been subjected to discrimination “since December 2018 and ongoing.”
However, the Agency noted that Complainant’s fiscal year 2019 Performance Appraisal is dated
November 30, 2018, and therefore, the Agency used this date for the start of the alleged
discriminatory event.

2020001950	2
Officers (“DROs”) at the facility have been held to a higher production standard than DROs
nationwide.
In its December 19, 2019 final decision, the Agency dismissed the formal complaint, pursuant to
29 C.F.R. § 1614.107(a)(1), finding that the same claim was raised in a prior EEO complaint in
Agency Case No. 200I-0316-2017101403. 3
The instant appeal followed. 	On appeal, Complainant argues that the Agency incorrectly
summarized the instant complaint. 	Complainant argues that the complaint at issue alleges that
the Agency discriminated against him based on disability since December 1, 2018, when he and
the other Decision Review Officers (“DROs”) at the Atlanta Regional Office have been held to a
higher production standard than six non-disabled DROs at the same facility.
Complainant explains that his prior complaint (Agency Case No. 200I-0316-2017101403)
alleges that the Agency discriminated against him based on race since July 2014, when he and
the other DROs at the facility have been held to a higher standard that DROs nationwide.
Complainant further argues that on November 26, 2019, he submitted a motion requesting that
the EEOC Administrative Judge (AJ) assigned to Agency Case No. 200I-0316-2017101403
amend his prior complaint to include the instant claim. 	Complainant explains that the Agency
argued, in its December 11, 2019 response, that Complainant’s motion should be denied.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss an entire
complaint that states the same claim that is pending before or has been decided by the agency or
the Commission. 	To be dismissed as the “same claim,” the present and prior complaints must
have involved identical matters. 	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. Dept. of the Air Force, EEOC Appeal No
01955890 (Apr. 5, 1996) rev'd on other grounds EEOC Request No. 05960524 (Apr. 24, 1997).
Our review of the record indicates that the Agency incorrectly framed the instant complaint as
Complainant makes note of this error on appeal. 	Our review of the record further indicates the
claim in the instant complaint and the claim in the prior complaint involve allegations of the
Agency holding Complainant to higher procedural standards. 	However, while the the prior
complaint is similar, it is not identical to the subject claim, because, among other things, the
subject claim did not occur during the same period as the prior complaint. The record reflects
that the prior complaint included the alleged discriminatory act occurring since July 2014 while
the instant complaint includes an alleged discriminatory act occurring since December 2018.
3 In this prior complaint, Complainant requested an administrative hearing before an EEOC
Administrative Judge (AJ) and is docketed as EEOC No. 410-2018-00001X.

2020001950	3
We also note that the AJ in the prior complaint issued an order, dated January 29, 2020, denying
Complainant’s motion to amend his prior complaint to include the instant complaint, finding in
pertinent part, that Complainant’s prior complaint and the instant complaint were not the same.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and
REMAND the matter to the Agency for further processing in accordance with this decision and
the ORDER below.
ORDER (E0618)
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 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.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency 	must 	send 	to 	the 	Compliance 	Officer: 	1) 	a 	copy 	of 	the 	Agency’s 	letter 	of
acknowledgment 	to 	Complainant, 	2) 	a 	copy 	of 	the 	Agency’s 	notice 	that 	transmits 	the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. 	Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. 	See 29 C.F.R. § 1614.403(g). 	The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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).

2020001950	4
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
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).

2020001950	5
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
August 27, 2020
Date