01993246
02-01-2000
Fred T. Forrest, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Fred T. Forrest, )
Complainant, )
)
v. ) Appeal No. 01993246
) Agency No. 99-4110
Lawrence H. Summers, )
Secretary, )
Department of the Treasury, )
Agency. )
____________________________________)
DECISION
The Commission finds that the agency's decision dated February 24,
1999 dismissing complainant's complaint for failing to state a claim is
proper pursuant to the regulation set forth at 64 Fed. Reg. 37,644, 37656
(to be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)).<1>
The agency defined the complaint as alleging that complainant was
discriminated against on the basis of his disability (disabled veteran)
when the agency failed to adjust his service computation date to include
time from September 18, 1968 through March 31, 1972, when he was placed
on the Temporary Disability Retirement List (TDRL) while serving with the
United States Army. The agency found that although the Rehabilitation Act
prohibits discrimination against qualified individuals with disabilities
on the basis of their disabling conditions, complainant's claim that he
was discriminated against because of his status as a disabled veteran
is not within the jurisdiction of the EEOC.
On his complaint form next to the line labeled "Physical Disability,"
complainant wrote "Disabled Veteran." On appeal, complainant states
that "[p]erhaps" he should have written "amputee" on the complaint
form rather than "disabled veteran." Complainant argues that he is a
disabled employee as defined in the Rehabilitation Act because of the
loss of his right leg.
The Commission finds that when the record as a whole is examined,
particularly complainant's appeal brief wherein complainant realizes
the question of the basis of his claim of discrimination has led to the
dismissal of his complaint, it can be seen that complainant is alleging
discrimination only on the basis of his status as a disabled veteran.
If the Commission determined that complainant actually intended, or
on appeal actually intends, to allege discrimination on the basis of
disability (loss of right leg), our disposition might be different.
Complainant provides in his appeal what he describes as an "example
. . . demonstrat[ing] the disparity between other handicapped employees
and my class as a handicapped employee which I termed as �disabled
veteran.'" In the example complainant contrasts the situation of
Employee A who was injured working for Agency A (loss of right leg
below the knee) with complainant who was injured while serving in the
United States Army. Complainant states that he is not claiming veterans
preference. The Commission finds that complainant is not claiming that
he was discriminated against on the basis of disability (loss of right
leg), but is claiming that he was discriminated against because of the
circumstances in which his disability arose - through his service in
the military (United States Army).
The EEOC has no jurisdiction over discrimination alleged to have occurred
because complainant is a disabled veteran. Complainant is not claiming
in the instant matter that he was discriminated against because of his
disability and that he just happened to be a veteran; rather, it is his
status as a veteran with a disability that is the alleged motivating
factor in the agency's action. Therefore, we find that the agency
properly dismissed the complaint for failing to state a claim.
The agency's decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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. 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:
February 1, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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
1On 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.