05980835
07-14-2000
Fernando G. Hernandez, Jr., Complainant, F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Fernando G. Hernandez, Jr. v. Department of the Air Force
05980835
July 14, 2000
Fernando G. Hernandez, Jr., )
Complainant, )
) Request No. 05980835
) Appeal No. 01971181
) Agency No. RXOF96027
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On June 3, 1998, Fernando G. Hernandez, Jr. (complainant) timely
initiated a request to the Equal Employment Opportunity Commission
(the Commission) to reconsider the decision in Fernando G. Hernandez
v. F. Whitten Peters, Acting Secretary, Department of the Air Force,
EEOC Appeal No. 01971181 (May 5, 1998).<1> EEOC regulations provide
that the Commissioners may, in their discretion, reconsider any previous
decision where the party demonstrates that: (1) the previous decision
involved a clearly erroneous interpretation of material fact or law;
or (2) the decision will have a substantial impact on the policies,
practices or operation of the agency. 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.405(b)).
For the reasons set forth below, the complainant's request is denied.
The Commission, however, exercises its discretion and reconsiders the
previous decision on its own motion.
ISSUE PRESENTED
The issue presented is whether the previous decision properly affirmed the
agency's final decision to dismiss complainant's complaint for untimely
EEO Counselor contact.
BACKGROUND
Complainant contacted the EEO office on July 3, 1996, and first saw an EEO
Counselor on August 14, 1996. He filed an EEO complaint on September 30,
1996, alleging discrimination on the bases of national origin (Cuban)
and disability (neck injury and dyslexia). He claimed that on July 3,
1996, he became aware (1) that the agency did not provide him with a
reasonable accommodation for his physical disability as early as 1992,
and (2) that he had been barred from participation in Hispanic Heritage
Week (an agency event) in 1994. He claimed when he initially contacted
the EEO counselor that he had been previously advised incorrectly by
the agency EEO office about his ability to file complaints on each of
these issues. In the final agency decision (FAD), the agency dismissed
complainant's claims on the basis of untimely EEO Counselor contact.
The agency found that complainant knew as early as October 5, 1994, that
he had not been given a reasonable accommodation for his disability, and
that he knew as early as September 27, 1995 about his ability to file a
complaint regarding claim 2. The agency also dismissed for failure to
state a claim.
The previous decision affirmed the agency's dismissal of the claims,
finding that complainant had reasonable suspicion that he had been
discriminated against at least as early as October 1994 for claim 1 and
as early as September 1995 for claim 2. It also found that complainant
had not shown that he was so incapacitated by his disability as to render
him unable to make a timely filing and thereby toll the time limit for
contacting an EEO Counselor. It did not address the agency's dismissal
on the basis of failure to state a claim.
In his request to reconsider (RTR), complainant argued that he was
justified in waiting to contact an EEO Counselor because the agency
EEO office gave him incorrect information about his right to file EEO
complaints on these issues, and on other previously filed complaints, and
misled him on his ability to file complaints on each claim. Complainant
first argued that in 1992, an agency official (not in the EEO office)
told him that the agency "did not have to accommodate me by regulation"
for his neck injury, and that if he persisted in requesting accommodation
he would be terminated. He finally met with an EEO Counselor in August
of 1994, but was told as well by the Counselor that the agency did
not have to accommodate his disability and that the Americans with
Disabilities Act (ADA) did not require the agency to accommodate him.
The Counselor also told him at that time that because he had filed a
previous complaint regarding being barred from participation in Hispanic
Heritage Week in 1992 and 1993 that this issue had "already been raised"
and he was "not able to refile on the same issue." He stated that he
requested a copy of the EEOC regulations at 29 C.F.R. � 1614 and that
he "was told it was not allowed." Complainant stated that it was not
until he consulted an attorney that he became aware of his right to file
complaints on both of these issues.
The agency did not submit a response to complainant's claims that he
was misled by the EEO office and given incorrect information by the EEO
Counselor.
ANALYSIS AND FINDINGS
In order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument which tends to establish
that at least one of the criteria of 29 C.F.R. � 1614.405(b) is met.
The Commission's scope of review on a request for reconsideration is
narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). An RTR is not merely a form of a second appeal.
Regensberg v. U.S. Postal Service, EEOC Request No. 05900850 (September 7,
1990).
After a careful review of the record, the Commission finds that
complainant's RTR does not meet the regulatory criteria of 29 C.F.R. �
1614.405(b). The Commission, however, has decided to reconsider the
case on our own motion. We find that in his request for reconsideration,
complainant more fully set forth his argument that the agency EEO office
had misled him, an argument which he had not completely developed
in his previous appeal. We note that the agency did not rebut his
argument beyond their original findings in the FAD that he had reasonable
suspicion at points in time significantly earlier than his EEO contact.
A careful examination of the record reveals that the documents the
agency cites to for proof that complainant had knowledge that he was
being discriminated against do not show that complainant also knew
that he had the ability to file EEO complaints on these two issues.
In fact, given the complainant's contention that he had been told by
the EEO Counselor that he did not have the ability to file complaints
on these issues, reasonable suspicion of discrimination would not have
triggered complainant to contact an EEO Counselor if he were under the
understanding that it would do him no good. The possibly conflicting
advice of his own representative (who the record reveals is not an
attorney) would not necessarily have changed his actions if the EEO
office was refusing to let him file. We reverse the previous decision
and the FAD and find that the complainant was timely in his EEO contact.
We note that the agency had also dismissed complainant's claims for
failure to state a claim but that the previous decision did not address
this basis for dismissal. The FAD stated that for claim 1, because "no
personnel action had been taken against complainant for his inability
to work, no accommodation was necessary." It also stated that claim 2
failed to state a claim because "[p]articipation in Hispanic Heritage
Week is not a personnel action."
In 64 Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(1)), the regulations provide that
an agency shall dismiss a complaint which fails to state a claim pursuant
to 29 C.F.R. � 1614.103 or � 1614.106(a). An agency shall accept a
complaint from any aggrieved employee or applicant for employment who
believes that he or she has been discriminated against by that agency
because of race, color, religion, national origin, age or disabling
condition. 29 C.F.R. � 1614.103; � 1614.106(a). The Commission's
federal sector case precedent has long defined an "aggrieved employee"
as one who suffers a present harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April
21, 1994). To establish that he is an "aggrieved employee" and therefore
state a claim under the regulations, a complainant must allege that he
was injured in fact. A term, condition or privilege of employment has
been held in Commission decisions to include, inter alia, promotion,
demotion, discipline, reasonable accommodation, appraisals, awards,
training, benefits, assignments, overtime, leave, tours of duty, etc.
Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13,
1997).
Claim 1 was improperly dismissed for failure to state a claim because
a request for and subsequent denial of reasonable accommodations for
a disability clearly states a claim under Commission precedent. Cobb,
supra; Puig v. U.S. Postal Service, EEOC Request No. 05970556 (October
1, 1998). A request for reasonable accommodations for a disability does
not first require that the employee be completely unable to work, as the
agency implied in the FAD. See EEOC Enforcement Guidance on Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities
Act (March 1, 1999).<2>
Claim 2 states a claim because the complainant is alleging that he
was denied the ability to participate in an agency sponsored event.
That event is considered a privilege of his employment. Additionally,
complainant claimed that he had to take leave time in order to attend the
observance, therefore, he suffered a loss to a benefit of his employment.
Cobb, supra.
CONCLUSION
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
the complainant's request does not satisfy the criteria of 29 C.F.R. �
1614.405(b), and it is the decision of the Commission to deny the request.
The Commission reconsiders the decision in EEOC Appeal No. 01971181 (May
5, 1998) on its own motion. The decision is REVERSED and the claims
are REMANDED to the agency for further processing. There is no further
right of administrative appeal from a decision of the Commission on a
request for reconsideration.
STATEMENT OF RIGHTS ON REQUEST FOR RECONSIDERATION
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 (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:
__07-14-00_______ __________________________________
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1 On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.
2 The Rehabilitation Act was amended in 1992 to apply the standards in the
Americans with Disabilities Act (ADA) to complaints of discrimination by
federal employees or applicants for employment. See 29 U.S.C. � 791(g).
Since that time, the ADA regulations set out at 29 C.F.R. Part 1630
apply to complaints of disability discrimination. These regulations
can be found on EEOC's website: www.eeoc.gov.