0120072901
09-13-2007
Leander D. Townsend, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
Leander D. Townsend,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120072901
Agency No. AREUWIES07FEB00467
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from a final agency decision (FAD)
dated May 8, 2007, 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 based on disability (diabetes) and reprisal for prior
protected EEO activity, as applicable, when:
1. he was transferred on December 29, 2005 from his position at the VAT
office in Hainerberg to the Tony Bass Fitness Center,
2. harassed on January 23, 2007, when he was scheduled and directed, under
penalty of absence without leave (AWOL), to attend a fitness-for-duty
exam on January 24, 2007 at 10:00 a.m., which was rescheduled to 2:00
p.m., and
3. on February 21, 2007, his January 16, 2007, written request for
reasonable accommodation was denied.
The FAD dismissed claim 1 for failure to timely initiate contact with an
EEO counselor. An aggrieved person must seek EEO counseling within 45
days of the date of the alleged discriminatory action, or in the case of
a personnel action, within 45 days of the effective date of the action.
29 C.F.R. � 1614.105(a)(1) and .107(a)(2). In dismissing claim 1, the
FAD reasoned that in connection with his complaint, complainant initiated
contact with an EEO counselor on February 13, 2007 and March 3, 2007,
beyond the 45 day limit do so. Complainant has not explained his delay.
The dismissal of claim 1 was proper and is affirmed.
The FAD dismissed claims 2 and 3 for failure to state a claim. It found,
in part, that complainant alleged disability discrimination under the
Americans with Disabilities Act (ADA). The FAD found that federal
employees are not covered by the ADA, and thus dismissed "ADA" claims.
Federal employees claiming disability employment discrimination are
covered by the Rehabilitation Act. It was amended in 1992 to apply the
standards of the Americans with Disabilities Act (ADA) to complaints
of discrimination by federal employees or applicants for employment.
Since that time, the EEOC's ADA regulations set out at 29 C.F.R. Part
1630 apply to complaints of disability discrimination. These regulations
can be found on the Commission's website at www.eeoc.gov. Regardless of
the statute cited by complainant, his disability claim is covered by the
Rehabilitation Act. This FAD's reason for dismissing disability claims
is unpersuasive.
In dismissing claim 3, the FAD reasoned, in part, that the person
complainant identified as denying the requested accommodation made no
decisions on accommodation, but rather, was an agency attorney advising
management and relaying its actions. The FAD characterized claim 3 as the
attorney denying the accommodation request. In the EEO administrative
process, however, a complaint is legally against the agency, not
a particular individual. Accordingly, the claim is that the agency
unlawfully denied a reasonable accommodation, not the agency attorney.
This FAD's reason for dismissing claim 3 is unpersuasive.
In dismissing claims 2 and 3, the FAD also addressed whether complainant
was an individual with a disability, found that the medical examination
was permissible and necessary,1 found that complainant was reasonably
accommodated, and so forth. In effect, the FAD found that claims 2
and 3 failed to state a claim because they lacked merit. However, in
determining whether an allegation states a claim, the assessment should
be whether if proven, would the claim constitute a harm. Dismissing for
failure to state a claim based on merits determinations (which should
occur only after an investigation and opportunity for a hearing), was
improper.
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 has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra.
Based on the above criteria, we find claims 2 and 3 state a claim.
The FAD dismissed a portion of claim 2 on the grounds that the AWOL
warning was a proposal to take an action. 29 C.F.R. � 1614.107(a)(5).
But since complainant alleges the action was taken to harass him,
the FAD improperly dismissed on this grounds. 57 Fed. Reg. 12643,
at Section 107(e), (April 10, 1992).
On appeal, complainant raises some new claims. As these are not before
us, we will not address them.
ORDER
The agency is ordered to process the remanded claims 2 and 3 above in
accordance with 29 C.F.R. � 1614.108.2 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 13, 2007
__________________
Date
1 Complainant contends for a variety of reasons that the medical
examination was unnecessary. The agency indicated that the medical exam
was to assess whether complainant needed his requested accommodations
for diabetes. On appeal, complainant avers that the medical examination,
among other things, tested him for alcohol and tobacco use, and avers
tests for these substances was improper. This contention is part of
claim 2.
2 On remand, the agency shall clarify with complainant the bases
(disability and reprisal) alleged in connection with claims 1 and 2,
and investigate those bases.
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0120072901
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120072901