Kenneth J. Glowski, Complainant,v.Lawrence H. Summers, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionJan 10, 2000
01994131 (E.E.O.C. Jan. 10, 2000)

01994131

01-10-2000

Kenneth J. Glowski, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.


Kenneth J. Glowski, )

Complainant, )

)

v. ) Appeal No. 01994131

) Agency No. 99-3006

Lawrence H. Summers, )

Secretary, )

Department of the Treasury, )

Agency. )

______________________________)

DECISION

On April 22, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received on March 26, 1999, pertaining

to a complaint of unlawful employment discrimination pursuant to Title

VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et

seq. and Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. �791 et seq.<1> The Commission accepts complainant's appeal

in accordance with EEOC No. 960.001.

The record reflects that on September 9, 1998 complainant initiated

contact with an EEO Counselor. During the counseling period,

complainant stated that on June 22, 1998 he applied for a promotion but

was subsequently not selected, and that management in not selecting him

has failed to accommodate his disability.

Counseling failed, and on or about October 19, 1998 complainant filed

a formal complaint alleging that he has been the victim of unlawful

employment discrimination on the basis of his race (white) and his

disability (physical). Complainant's complaint was comprised of the

matters in which he underwent EEO counseling, discussed above.

The agency, on March 24, 1999, issued a final decision dismissing

complainant's complaint pursuant to 29 C.F.R. �1614.107(a), for failure

to state a claim. Hence, the current appeal ensued.

The agency, in their final decision improperly dismissed complainant's

complaint, for failure to state a cognizable claim. 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 22, 1994)

The only proper questions in determining whether an allegation 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). Here, complainant alleged that he was not selected

for a promotion because of his race and disability and that management

failed to accommodate his disability. Complainant's allegations are

sufficient to render him an �aggrieved employee�. Furthermore, since

complainant has alleged that the adverse action was based on his race

and disability, complainant has raised an allegation within the purview

of the EEOC regulations.

Accordingly, the agency's decision to dismiss complainant's complaint

for failure to state a claim was improper and is REVERSED. Complainant's

complaint is REMANDED to the agency for further processing in accordance

with this decision and applicable regulations.

Finally, having reviewed complainant's complaint, the Commission

determines that one allegation raised therein was not addressed by the

agency in its final decision. Specifically, complainant alleged that

management has failed to accommodate his disability. The agency neither

explicitly dismissed this allegation nor informed complainant of his

appeal rights to the Commission regarding this allegation. Finding the

agency's omission to be a dismissal of the allegation, the

Commission hereby REVERSES the dismissal and REMANDS the allegation for

further processing. The Commission therefore determines that the agency's

decision to dismiss this allegation was improper. Complainant's complaint

is REMANDED to the agency for further processing in accordance with this

decision and applicable regulations.

ORDER (E1199)

The agency is ORDERED to process the remanded complaint in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant 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 complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request.

A copy of the agency's letter of acknowledgment to complainant and an

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 (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 (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

(R1199)

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:

January 10, 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 Equal Employment Assistant1On 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.