01980893
10-16-1998
Ralph R. Pasatiempo, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Ralph R. Pasatiempo, )
Appellant, )
)
v. ) Appeal No. 01980893
) Agency No. DON-97-62813-013
John H. Dalton, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his complaint of unlawful employment discrimination,
in violation of Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq. The final agency decision was received
by appellant on October 24, 1997. The appeal was postmarked November
4, 1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
On August 21, 1997, appellant filed a formal complaint, alleging that
he was the victim of unlawful employment discrimination on the basis
of disability.
On October 23, 1997, the agency issued a final decision. Therein,
the agency determined that appellant's formal complaint was comprised
of two allegations, that were identified in the following fashion:
a. Because of your physical disability (back injury), you were
discriminated against when you were removed from Federal Service effective
11 July 1997.
b. Because of your physical disability (back injury), you were
discriminated against on 11 June 1997, when you were placed on
administrative leave so that you could not injure yourself while on
the job.
The agency accepted allegation (a) for investigation. The agency
dismissed allegation (b) for failure to state a claim. Regarding
allegation (b), the agency found that the Naval Station Security
Department Security Officer and the Major of Operations informed appellant
that he was being placed on administrative leave so that he would not
injure himself. The agency construed the matter raised in allegation
(b) as an isolated remark unaccompanied by concrete action, that did
not render appellant aggrieved.
On appeal, appellant argues that he was capable of working, but that
the agency chose instead to place him on administrative leave on June
11, 1997.
In response, the agency argues that appellant was unable to perform the
essential function of his position following an on-the-job injury; that
he was issued a Notice of Proposed Removal Letter on June 11, 1997; and
placed on administrative leave, and removed from Federal Service effective
July 11, 1997. The agency argues that there is no evidence in the record
reflecting that appellant suffered any loss or denial of benefits as
a result of being placed on administrative leave. The agency further
notes that an investigation of the allegation relating to appellant's
removal is pending, and that the matter raised in allegation (b) will
be considered background to the issue of appellant's removal.
EEOC Regulation 29 C.F.R. �1614.107(a) provides for the dismissal
of a complaint which fails to state a claim within the meaning of
29 C.F.R. �1614.103. In order to establish standing initially under
29 C.F.R. �1614.103, a complainant must be either an employee or an
applicant for employment of the agency against which the allegations of
discrimination are raised. In addition, the allegations must concern an
employment policy or practice which affects the individual in his capacity
as an employee or applicant for employment. 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; �1614.106(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).
In the present case, appellant alleged in allegation (b) that he was
improperly placed on administrative leave effective June 11, 1997.
Appellant's allegation is sufficient to render him an aggrieved employee.
See Green v. USPS, EEOC Appeal No. 01961756 (May 27, 1997). Because
appellant has alleged that the adverse action was based on disability,
he has raised an allegation within the purview of the EEOC regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in
some jurisdictions have interpreted the Civil Rights Act of 1991 in a
manner suggesting that a civil action must be filed WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision. To ensure
that your civil action is considered timely, you are advised to file
it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive
this decision or to consult an attorney concerning the applicable time
period in the jurisdiction in which your action would be filed. 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 (Z1092)
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:
Oct. 16, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations