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)."