Gerard F. Earle, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 25, 2000
01A00033 (E.E.O.C. Aug. 25, 2000)

01A00033

08-25-2000

Gerard F. Earle, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Gerard F. Earle v. U.S. Postal Service

01A00033

August 25, 2000

.

Gerard F. Earle,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A00033

Agency No. 1-A-113-0047-98

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision dismissing his complaint of unlawful employment discrimination

brought under Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791 et seq.<1> We accept the appeal pursuant to 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).

The record shows that complainant filed a formal complaint on August 25,

1998, alleging that he was subjected to discrimination on the basis of

disability when:

(1) On May 26, 1998, complainant reported for a fitness for duty

examination with documentation from his chiropractor stating that

complainant was able to return to duty on May 30, 1998, having recovered

from a back injury sustained in a vehicle accident, but the medical unit

did not allow complainant to return to full duty until July 2, 1998,

after they received the results of a diabetes test; and

(2) On June 29, 1998, complainant's Step 2 grievance was denied.

Initially, the agency accepted claim 1, but dismissed claim 2 for

failure to state a claim because it constituted a collateral attack on

the grievance process. Complainant appealed this determination to the

Commission. The Commission affirmed the agency's dismissal of claim 2.

Earle v. USPS, EEOC Appeal No. 01990886 (September 7, 1999).

Following the investigation of claim 1, the agency issued a final decision

on September 8, 1999. The agency determined that complainant did not

respond to its notice of a request for a hearing or an immediate final

decision within thirty days of his receipt of such a notice. The agency

did not, however, issue a decision on the merits of claim 1. Instead,

the agency dismissed it for failure to state a claim, and determined that

complainant failed to show how he was aggrieved by the delay in his return

to full duty and asserted that complainant lost no wages or benefits.

On appeal, complainant argues that contrary to the agency's determination,

he lost paid work days because of the delay. Complainant argues that he

was further aggrieved when the agency's physician made an arbitrary and

unwarranted assumption that he was unable to perform his full duties

because of his diabetes, not his back injury, and that he should not

have been required to submit a glucose blood test result as a condition

to his return to employment.

In response, the agency argues that complaint decided himself not to

return to work because he wanted full duty instead of light duty because

the extra activity was better for his diabetes. The agency further

suggests that the Commission address the complaint on the merits and

decide in favor of the agency.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part, that an

agency shall dismiss a complaint that fails to state a claim. 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, sex, national origin, age or

disabling condition. 29 C.F.R. �� 1614.103, .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).

The only proper questions in determining whether a claim is within the

purview of the EEO process are (1) whether the complainant is an aggrieved

employee and (2) whether he has alleged employment discrimination covered

by the EEO statutes. An employee is "aggrieved" if he has suffered

direct and personal deprivation at the hands of the employer. See Hobson

v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).

In claim 1, complainant claimed that although he reported for a fitness

for duty test in May 1998, with documentation reflecting that he was

capable of returning to duty on May 30, 1998, he was not allowed to

return to full duty until July 2, 1998, after the agency received the

results of a diabetes test; and that as a result of this action he lost

paid work days. Complainant's claim is sufficient to render him an

aggrieved employee. Because complainant has alleged that the adverse

action was based on physical disability, he has raised a claim within

the purview of the EEOC regulations.

Accordingly, the agency's decision to dismiss claim 1 for failure to

state a claim was improper and is REVERSED. Claim 1 is REMANDED to the

agency for further processing in accordance with the ORDER below.

ORDER

The agency is ORDERED to issue a final decision on the merits of claim

1 within thirty (30) calendar days of the date that this decision

becomes final, pursuant to 64 Fed. Reg. 37,644, 37,657-37,658 (1999)

(to be codified as 29 C.F.R. � 1614.110(b)). A copy of the agency's

final decision must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

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:

August 25, 2000

Date Carlton M. Hadden, 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.