01a45009r
01-18-2005
Edward A. Patacsil v. Department of the Air Force
01A45009
January 18, 2005
.
Edward A. Patacsil,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A45009
Agency No. 5XIL04017L04
DECISION
In a formal EEO complaint dated April 9, 2004, complainant alleged that he
was subjected to harassment and 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. on the bases of race (Asian),
disability, and in reprisal for prior EEO activity. Complainant alleges
that he was discriminated against when: (1) he was harassed on a daily
basis with the most recent events occurring on February 6, 2004, when
complainant's supervisor told him he was going to put him back to full
duty and reprimanded complainant by placing him on AWOL for leaving the
premises without an excuse; and (2) management allegedly failed to comply
with the terms of the EEO settlement agreement dated October 2, 2003.
The agency dismissed the entire complaint on June 21, 2004, and determined
that with regard to issue one, complainant failed to state a claim
because the incidents, even if proven to be true would not indicate that
complainant had been subjected to harassment that was sufficiently severe
or pervasive to alter the conditions of his employment. Moreover, the
agency determined that complainant's claim does not otherwise challenge
an unlawful employment policy or practice. A supervisor informing
complainant, the agency argued, that he was going to put complainant
back to full duty, unless he was given medical documentation indicating
that he should do otherwise, is not an unlawful employment practice nor
is it discriminatory under EEO statutes.
Claim One
A complaint should not be dismissed for failure to state a claim unless
it appears beyond doubt that the complainant cannot prove a set of facts
in support of the claim which would entitle the complainant to relief.
The trier of fact must consider all of the alleged harassing incidents
and remarks, and considering them together in the light most favorable to
the complainant, determine whether they are sufficient to state a claim.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). Although complainant alleged that he was subjected to daily
harassment, he identifies only the aforementioned incidents. We are
not persuaded that they are sufficient to state an actionable claim of
harassment. Accordingly, we AFFIRM the agency's dismissal of claim one.
Claim Two
With regard to issue two, the agency dismissed this issue based on
the fact that complainant disregarded the requirements of 29 C.F.R. �
1614.504 (a) by failing to notify the EEO Director in writing of the
alleged noncompliance of an EEO settlement agreement within thirty (30)
days of when the complainant knew or should have known of the alleged
noncompliance. Complainant instead of notifying the EEO Director, filed
a new EEO complaint. Specifically, complainant alleges that the agency
breached the settlement agreement by failing to perform requirement 2(a),
2(c), 2(d) of the October 2, 2003 settlement agreement, and by continuing
to harass complainant.
A breach claim is properly processed pursuant to 29 C.F.R. � 1614.504.
Therefore, we direct the agency to process the incident described in
issue two as an allegation of breach of the October 2, 2003, settlement
agreement. Accordingly, we VACATE the agency's dismissal of issue two
and REMAND issue two to the agency for further processing pursuant to
29 C.F.R. � 1614.504.
ORDER
The agency is ordered to process complainant's claim that the agency
breached the October 2, 2003 settlement agreement in accordance with 29
C.F.R. � 1614.504. Within sixty (60) calendar days of this decision
becoming final, the agency shall issue its determination, in writing,
to the complainant. If complainant is dissatisfied with the agency's
response, he may appeal to the Commission pursuant to 29 C.F.R. �
1614.504(b).
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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 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), 9-18 (November 9, 1999). All requests
and arguments must 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 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
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:
______________________________ January 18, 2005
Carlton M. Hadden, Director Date
Office of Federal Operations