01A33599_r
12-16-2003
Kirk Kopitzke, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Kirk Kopitzke v. Department of the Army
01A33599
December 16, 2003
.
Kirk Kopitzke,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A33599
Agency No. ARBLUEG03FEB0007
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated May 5, 2003, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the bases of disability and reprisal for prior EEO
activity when:
On April 10, 2003, complainant's supervisor and the CEA chose not to
respond to complainant's written request for a position evaluation
and upgrade.
On February 4, 2003, complainant received his annual performance review
in which his supervisor remarked that complainant needs to improve
his ability to work with others and his completion of tasks in a more
timely manner.
On January 23, 2003, complainant alleged discrimination in the form of
reprisal for previous management observations and complainant's issues
concerning the need for direct management's attention to working issues.
On February 5th, 6th, and 10th, 2003, complainant was denied sick leave
for physical therapy.
The agency dismissed claims (a) and (c) pursuant to 29 C.F.R. �
1614.107(a)(1) on the grounds that these claims fail to allege any present
harm or loss with respect to a term, condition or privilege of employment.
The agency dismissed claim (b) pursuant to 29 C.F.R. � 1614.107(a)(1)
on the grounds that complainant failed to state any basis (disability,
reprisal, etc.) for this claim. Further, the agency dismissed claim (d),
pursuant to 29 C.F.R. � 1614.107(a)(5), after finding that complainant's
sick leave had been approved and this claim was therefore moot.
The regulation set forth at 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 Commission finds that the agency has misdefined claim (a). The
Commission finds that in claim (a) the agency, by allegedly failing to
respond to complainant's request for a position evaluation and upgrade,
has effectively denied complainant's request. Claim (a) therefore states
a claim. The agency's dismissal of claim (a) pursuant to 29 C.F.R. �
1614.107(a)(1) is therefore improper.
With respect to claim (b), we find complainant's April 10, 2003
complaint, at item #13, alleges discrimination on the basis of reprisal
and disability. Accordingly, claim (b) states a claim, namely, that
unfavorable comments describing complainant's performance were placed
in the permanent record of complainant's annual performance appraisal,
based on disability and reprisal. The agency's dismissal of claim (b)
pursuant to 29 C.F.R. � 1614.107(a)(1) is therefore improper.
We find claims (c) and (d) both allege discrimination in connection with
the initial denial of complainant's requests for approved sick leave.
We find claim (c) is more appropriately framed as "on January 23, 2003,
complainant was informed of the agency's policy regarding the use
of sick leave for self-directed physical therapy in long-term cases
and approval of complainant's request for sick leave for January 23,
2003 was rescinded." We note the EEO Counselor's Report indicates that
complainant's sick leave request for the dates specified was eventually
approved during counseling.<1> The record does not contain evidence
conclusively showing that the leave was approved or when the leave was
approved. Therefore, we find that claims (c) and (d) state a claim.
Furthermore, on appeal, complainant requests compensatory damages for
events he alleges have been "emotionally demoralizing." The agency has
not addressed whether complainant would be entitled to compensatory
damages if he were to prevail in claims (c) or (d). Thus, we cannot
find that intervening events have completely eradicated the effects of
the alleged discrimination and we can not find claims (c) and (d) moot.
Accordingly, claims (c) and (d) were improperly dismissed.
We therefore REVERSE the agency's dismissal of the complaint.
The complaint, as redefined in this decision, is REMANDED to the agency
for further processing as directed herein.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 16, 2003
__________________
Date
1We observe that EEO counseling occurred from
February 24, 2003 through April 10, 2003, and that complainant was on
leave, of some kind, from March 5, 2003 through March 16, 2003.