01990032
07-14-2000
Peter W. Pantazes, Complainant, v. Andrew M. Cuomo, Secretary, Department of Housing and Urban Development, Agency.
Peter W. Pantazes v. Department of Housing and Urban Development
01990032
July 14, 2000
Peter W. Pantazes, )
Complainant, )
)
v. ) Appeal No. 01990032
) Agency No. FH 98 03
)
Andrew M. Cuomo, )
Secretary, )
Department of Housing and Urban )
Development, )
Agency. )
________________________________)
DECISION
The record indicates that complainant, a Program Analyst, GS-13, filed a
formal complaint dated March 9, 1998, alleging that: (1) he was denied
reasonable accommodation for his physical disability (torn meniscus
of the left knee and chronic rupture Achilles tendon of both feet)
by not providing him with his requested battery-motorized scooter;
(2) since September 1996, he was given extra duties/responsibilities,
i.e., to create a fully computerized management information system, a
government technical representative, and web master for 242 program; (3)
since November 1996, he was subjected to verbal abuse from an Assistant
Director; (4) on February 26, 1998, the Assistant Director assigned him
a project with unrealistic time frames for completion; (5) on April 30,
1997, the Assistant Director told him that he was no longer allowed to
work on his compressed work schedule and on November 24, 1997, he was
officially removed from his compressed work schedule.
The agency stated, in its decision, that complainant raised claim (1)
in a grievance, thereby making an election to pursue the matter through a
negotiated grievance procedure. However, the record does not contain a
copy of a union agreement and/or any relevant documentation indicating
that complainant's filing of a grievance constitutes an election to
pursue the alleged matter through a grievance procedure, which permits
claims of discrimination to be raised therein. Thus, the Commission
finds that the agency's dismissal of claim (1) for raising the same
matter in a grievance is improper, pursuant to the regulation set forth
at 64 Fed. Reg. 37,644, 37,656 (to be codified as and hereinafter cited
as 29 C.F.R. � 1614.107(a)(4)).<1>
With regard to claims (2), (3), and (4), the agency stated that
complainant failed to bring these matters to the attention of an EEO
Counselor. The EEO Counselor's Report indicates that complainant, during
EEO counseling, alleged that he was denied his old job responsibilities,
and that his �duties and responsibilities involved a great deal of
walking and the workload was too heavy for him to handle.� The EEO
Counselor's Report also includes a memorandum from a union representative
to complainant's supervisor indicating that complainant was subjected to
an increased workload and oral abuse from the Assistant Director, as well
as the denial of reasonable accommodation for his physical conditions.
Based on the foregoing, the Commission finds that complainant clearly
raised claims (2) and (3) during EEO counseling. With regard to claim
(4), i.e., concerning complainant's work assignment on February 26, 1998,
the record indicates that the incident occurred after the final interview
with the EEO Counselor, and was not raised during EEO counseling.
However, upon review, the Commission finds that the alleged matter is
like or related to the matters that had been brought to the attention
of the EEO Counselor, i.e., concerning complainant's heavy workload,
including his increased duties and responsibilities. Based on the
foregoing, the Commission finds that the agency's dismissal of claims
(2), (3), and (4) for failure to bring the matters to the attention of
an EEO Counselor is improper, pursuant to the regulation set forth at
64 Fed. Reg. 37,644, 37,656 (to be codified as and hereinafter cited as
29 C.F.R. � 1614.107(a)(2)).
With regard to claim (5), i.e., concerning the denial of his compressed
work schedule, the agency, in its decision, dismissed the subject claim
due to untimely EEO Counselor contact. Complainant clearly indicated
that on April 30, 1997, he was orally informed that he would be removed
from his compressed work schedule and thereafter, on November 24, 1997,
he was formally, in writing, informed of the same. However, complainant
did not contact an EEO Counselor with regard to the matter until February
2, 1998, which was beyond the 45-day time limit. On appeal, complainant
does not present adequate justification to warrant an extension of the
applicable time limit for contacting an EEO Counselor.
Accordingly, the agency's decision dismissing claim (5) is AFFIRMED.<2>
The agency's decision dismissing claims (1) through (4) is hereby
REVERSED. Claims (1) through (4) are REMANDED to the agency for further
processing in accordance with this decision and applicable regulations.
ORDER (E0400)
The agency is ORDERED to process the remanded claims 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 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 (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 (T0400)
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:
July 14, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2We need not address the agency's dismissal of claim (5) on the
alternative grounds, i.e., for raising the same matter in a negotiated
grievance procedure and for failure to bring the matter to the attention
of an EEO Counselor, since the dismissal due to untimely EEO contact
was affirmed.