01992938
02-16-2000
Steven Tomei, Complainant, v. William S. Cohen, Secretary, Department of Defense, Agency.
Steven Tomei, )
Complainant, )
)
v. ) Appeal No. 01992938
) Agency No. XQ-99-005<1>
William S. Cohen, )
Secretary, )
Department of Defense, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
On February 24, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to his complaint
of unlawful employment discrimination in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. ,
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.<2>
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for filing the complaint based upon a proposed action.
BACKGROUND
Complainant filed a formal complaint on November 20, 1998 alleging
discrimination based on disability (physical) and reprisal (prior EEO
activity)<3>. In his complaint, complainant specifically alleged his
supervisor:
consistently discussed or gave him information about disability
retirement;
forced him to go to the emergency room (ER) each time he had a seizure
and required a medical release after each ER visit before he could return
to work;
gave him a negative performance appraisal on May 7, 1998;
denied him union representation in a disciplinary meeting on May 15,
1998;
sent him home until further notice, on August 3, 1998, when he attempted
to return to work after a seizure four days earlier;
sent him a letter dated August 3, 1998 instructing him not to return to
work pending a determination regarding the potential danger he posed to
himself and others in the workplace;
requested a fitness-for-duty examination for him in a memorandum dated
August 11, 1998;
sent him a certified letter of proposed removal dated September 15,
1998 indicating that he could not perform the essential functions of
his mail clerk position.
On January 25, 1999<4>, the agency issued a final decision dismissing
complainant's complaint for filing a complaint based upon a proposed
action. This appeal followed. The agency later terminated complainant's
employment.<5>
ANALYSIS AND FINDINGS
The Commission has consistently held that when a complaint is filed
on a proposed action and the agency subsequently proceeds with the
action, the action is considered to have merged with the proposal.
Siegel v. Department of Veterans Affairs, EEOC Request No. 05960568
(October 9, 1997); Charles v. Department of the Treasury, EEOC Request
No. 05910190 (February 25, 1991).
Complainant sought EEO counseling and filed a formal complaint after he
was informed of his proposed removal from the position of mail clerk.
Following his Commission appeal of the agency's dismissal of his
complaint, the agency terminated complainant's employment. Therefore the
agency's dismissal is reversed and it is advised that Complaint number
XQ-99-005 no longer involves a proposed action, and should be processed
accordingly.<6> See Scott v. United States Postal Service, EEOC Request
No. 05960080 (June 7, 1996).
CONCLUSION
It is the decision of the Commission to REVERSE the agency's dismissal
of complainant's complaint.
ORDER (E1199)
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 an
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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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:
Feb. 16, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1In a letter dated March 23, 1999, the agency changed the agency case
number from XQ-98-021.
2On 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.
3Complainant filed a formal complaint in June 1997 which resulted in a
settlement agreement with the agency dated August 28, 1997.
4The agency indicated January 25, 1998 as the date of the decision in
error.
5Complainant's union representative sent a letter dated April 2, 1999
informing the Commission of his termination, however, she did not indicate
the effective date.
6The Commission notes complainant alleged the proposed removal was
one incident in an alleged pattern of harassment. Therefore, even
if complainant was not terminated from his position, we would not
have considered his claim a proposed action and we would have deemed
the agency's dismissal of that claim improper. See Rodriguez-Soto
v. Department of Army, EEOC Request No. 05960646 (October 8, 1998)