01994025
11-05-1999
David C. Strange, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
David C. Strange, )
Appellant, )
)
v. ) Appeal No. 01994025
) Agency No. ORM 99-0519
Togo D. West, Jr., )
Secretary, )
Department of Veterans )
Affairs, )
Agency. )
______________________________)
DECISION
On April 20, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) issued on March 22, 1999, pertaining to
a complaint of unlawful employment discrimination pursuant to Section 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.
The Commission accepts appellant's appeal in accordance with EEOC
No. 960.001.
On or about February 19, 1999 appellant filed a formal complaint, alleging
that he was the victim of unlawful employment discrimination on the basis
of disability (physical). Appellant alleged therein that he had been
subjected to harassment since August 19, 1998. The allegations addressed
managements constant failure to accommodate his injury, failure provide
relevant training, failure to promote, proposals to suspend him for not
following orders and a reprimand for not following orders.
The agency, on March 22, 1999, issued a final decision. Therein, the
agency found that appellant's complaint was comprised of five allegations
that were identified in the following fashion:
1. On September 14, 1998 appellant was issued a proposal of suspension;
2. On November 2, 1998 appellant received a reprimand;
3. Harassment commencing on August 19, 1998 to date;
4. Failure to promote on January 3, 1999; and
5. On November 23, 1998 appellant suffered other personal injuries.
The agency dismissed allegations one and two. As per allegation one,
the agency dismissed this allegation for failure to state a claim because
it involved only a proposal to take action. As per allegation two,
the agency found that appellant raised this issue in agrievance filed
pursuant to a negotiated grievance procedure and therefore dismissed
the allegation pursuant to 29 C.F.R. �1614.107(d).
Within the agency's final decision, the agency dismissed allegation one
for failure to state a claim. In his formal complaint, appellant alleged
that he was the recipient of harassment. Instead of treating all the
allegations as incidents of the claim of harassment, the agency looked
at them individually. Thus, we find that the agency acted improperly by
treating matters raised in appellant's complaint in a piecemeal manner.
See Meaney v. Department of the Treasury, EEOC Request No. 05940169
(November 3, 1994) (an agency should not ignore the "pattern aspect" of
a complainant's allegations and define the issues in a piecemeal manner
where an analogous theme unites the matter complained of). Consequently,
when appellant's allegations are viewed in the context of appellant's
complaint of harassment, allegation one states a claim and the agency's
dismissal of this allegation for failure to state a claim was improper.
Accordingly, the agency's decision to dismiss allegation one was improper
and is REVERSED. Appellant's complaint is REMANDED to the agency for
further processing in accordance with this decision and applicable
regulations.
Having reviewed the complaint and its file, the Commission affirms
the agency's decision to dismiss allegation two because appellant has
previously raised this issue before a negotiated grievance committee.
Accordingly, the agency's decision to dismiss allegation two pursuant
to 29 C.F.R. � 1614.107(d) was proper and is AFFIRMED.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 19848,
Washington, D.C. 20036. The agency's report must
contain supporting documentation, and the agency must send a copy of
all submissions to the appellant. If the agency does not comply with
the Commission's order, the appellant may petition the Commission for
enforcement of the order. 29 C.F.R. �1614.503 (a). The appellant
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. �� 1614.408, 1614.409, and 1614.503 (g).
Alternatively, the appellant 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. �� 1614.408 and 1614.409.
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)
(Supp. V 1993). If the appellant files a civil action, the administrative
processing of the complaint, including any petition for enforcement,
will be terminated. See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date
that you receive this decision or to consult an attorney concerning
the applicable time period in the jurisdiction in which your action
would be filed. 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 (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
November 5, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations