01971114
01-20-1999
Robert Haxby, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Robert Haxby v. Department of the Navy
01971114
January 20, 1999
Robert Haxby, )
Appellant, )
)
v. ) Appeal No. 01971114
) Agency No. 96-65888-039
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated September 25, 1996, which the agency issued pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a) and (b). The Commission accepts
the appellant's appeal in accordance with EEOC Order No. 960, as amended.
The appellant filed an EEO complaint alleging that based on his physical
disability and in retaliation for his prior EEO activity, the agency
charged him annual leave for the period of August 31 through October 31,
1995, instead of leave without pay.
The agency dismissed the appellant's complaint based on his untimely EEO
counselor contact on April 15, 1996. Additionally, the agency dismissed
the complaint on the ground that the appellant was no longer aggrieved in
that the Department of Labor had approved the buy back of the appellant's
annual leave.
According to the EEO Counselor's Report, the appellant first contacted
him about the leave issue on April 15, 1996. The Report indicates that
the appellant previously had filed an informal EEO complaint on December
12, 1995, regarding pay, including overtime. The Report indicates that
the informal complaint was withdrawn.
On appeal, the appellant contends that he contacted the EEO Counselor
on or about December 1, 1995, within 45 days of the date he returned to
duty following surgery. The appellant also contends that under workers'
compensation law he had the right to use annual leave, sick leave, leave
without pay, or a combination of the three for his surgery and recovery.
In response, the agency reiterates its reliance on the April 15, 1996
EEO Counselor contact date.
After a review of the record, including the appeal submissions of the
parties, the Commission finds that the appellant's complaint fails to
state a claim under 29 C.F.R. Part 1614. The record establishes that
the issue of leave for the appellant's surgery and recovery is governed
by the Federal Employees' Compensation Act. That law is administered
by the U.S. Department of Labor, not by the Commission. Therefore,
the appellant's remedy for the agency's alleged unlawful handling of
his leave request, if any, lies with the Department of Labor, not the
Commission.<1>
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the appellant's July 16, 1996 complaint.
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 (S0993)
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. 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 (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:
January 20, 1999
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations
1It appears that the Department of Labor has granted the appellant's
request for the "buy back" of his annual leave.