Ernest N. Bellantoni, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01983836 (E.E.O.C. Sep. 9, 1999)

01983836

09-09-1999

Ernest N. Bellantoni, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Ernest N. Bellantoni v. Department of the Navy

01983836

September 9, 1999

Ernest N. Bellantoni, )

Appellant, )

) Appeal No. 01983836

v. ) Agency No. DON98-66001-007

)

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision (FAD) concerning his complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. �2000e et seq., the Age Discrimination in

Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. and �501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. The FAD

was dated March 19, 1998. The appeal was postmarked on April 16, 1998.

Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is

accepted in accordance with EEOC Order No. 960.001, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed two of the

allegations in appellant's complaint for failure to state a claim.

BACKGROUND

Appellant filed a formal complaint on January 30, 1998, alleging

discrimination on the bases of age (D.O.B. 12/24/33), physical disability

(+30% disabled veteran/limited pulmonary capacity with associated

respiratory illness<1>) and reprisal (prior EEO activity). In its FAD,

the agency condensed appellant's allegations. According to the FAD,

appellant alleged discrimination on the bases of age, disability and

reprisal when:

(a) the Command failed to provide him with advancement and training

opportunities as required by the Disabled Veterans Affirmative Action

Plan;

(b) he was assigned low skill work which affected his performance rating

and career advancement;

(c) he was notified, on August 4, 1997, that he had received a successful

performance rating with no performance award points for the performance

rating period of July 1, 1996 through June 30, 1997;

(d) he was denied an extension of time to file an administrative grievance

regarding his August 18, 1997 performance rating; and

(e) he was not provided with adequate resources to perform a higher

level of work.

The agency accepted allegations (b), (c) and (e) for processing.

It dismissed allegations (a) and (d) for failure to state a claim.

This appeal followed.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency shall

dismiss a complaint which fails to state a claim pursuant to 29

C.F.R. �1614.103.

In allegation (a), appellant asserts that he was not provided with the

advancement and training opportunities that he was entitled to under

the Disabled Veterans Affirmative Action Plan. We note that veterans'

preference is not an enumerated basis for filing a formal EEO Complaint.

Further, because administrative responsibility for the affirmative action

plan for disabled veterans is with the Office of Personnel Management,

appellant's allegation of discrimination based on an affirmative

action plan for disabled veterans is beyond the Commission's authority.

Carter v. United States Postal Service, EEOC Request No. 05900340 (April

19, 1990). See Czecha v. Verity, EEOC Request No. 05880604 (June 27,

1988); Fisher v. Department of Commerce, EEOC Request No. 05900008; Glenn

v. Department of Veterans Affairs, EEOC Request No. 05910927 (February 21,

1992). We find, therefore, that allegation (a) fails to state a claim.

In allegation (d), appellant asserts that he was denied an extension of

time to file an administrative grievance. The Commission will review

allegations of discrimination that an agency's grievance process

is administered in a discriminatory fashion, or that a grievance

resolution is discriminatory in its implementation, but we will

not review allegations related to how the employee's grievance was

ultimately decided. See Bowie v. United States Postal Service, EEOC

Request No. 05910802 (February 4, 1992). Appellant's allegation, that he

was denied an extension of time to file his grievance because of his age,

disability, and reprisal, concerns discrimination in the administration of

the grievance process. It does not concern the outcome of the grievance.

We find, therefore, that allegation (d) states a claim.

CONCLUSION

Accordingly, the decision of the agency is AFFIRMED with respect to

allegation (a), and REMANDED with respect to allegation (d).

ORDER (E1092)

The agency is ORDERED to process the remanded allegation in accordance

with 29 C.F.R. �1614.108. To the extent possible, it will consolidate

allegation (d) with already accepted allegations (b),(c) and (e).

The agency shall acknowledge to the appellant that it has received

the remanded allegation 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 (T0993)

This decision affirms the agency's final decision 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 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.

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 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 (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:

September 9, 1999

______________ __________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

1 Appellant did not describe his physical disability in his formal

complaint. He did, however, describe his physical disability to his EEO

Counselor. That description was recorded in the EEO Counselor's report

as "disability (+30% disabled veteran-limited pulmonary capacity with

associated respiratory illness)."