Edward A. Patacsil, Complainant,v.Dr. James G. Roche, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionJan 18, 2005
01a45009r (E.E.O.C. Jan. 18, 2005)

01a45009r

01-18-2005

Edward A. Patacsil, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.


Edward A. Patacsil v. Department of the Air Force

01A45009

January 18, 2005

.

Edward A. Patacsil,

Complainant,

v.

Dr. James G. Roche,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01A45009

Agency No. 5XIL04017L04

DECISION

In a formal EEO complaint dated April 9, 2004, complainant alleged that he

was subjected to harassment and discrimination in violation of Title VII

of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e

et seq. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. on the bases of race (Asian),

disability, and in reprisal for prior EEO activity. Complainant alleges

that he was discriminated against when: (1) he was harassed on a daily

basis with the most recent events occurring on February 6, 2004, when

complainant's supervisor told him he was going to put him back to full

duty and reprimanded complainant by placing him on AWOL for leaving the

premises without an excuse; and (2) management allegedly failed to comply

with the terms of the EEO settlement agreement dated October 2, 2003.

The agency dismissed the entire complaint on June 21, 2004, and determined

that with regard to issue one, complainant failed to state a claim

because the incidents, even if proven to be true would not indicate that

complainant had been subjected to harassment that was sufficiently severe

or pervasive to alter the conditions of his employment. Moreover, the

agency determined that complainant's claim does not otherwise challenge

an unlawful employment policy or practice. A supervisor informing

complainant, the agency argued, that he was going to put complainant

back to full duty, unless he was given medical documentation indicating

that he should do otherwise, is not an unlawful employment practice nor

is it discriminatory under EEO statutes.

Claim One

A complaint should not be dismissed for failure to state a claim unless

it appears beyond doubt that the complainant cannot prove a set of facts

in support of the claim which would entitle the complainant to relief.

The trier of fact must consider all of the alleged harassing incidents

and remarks, and considering them together in the light most favorable to

the complainant, determine whether they are sufficient to state a claim.

Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March

13, 1997). Although complainant alleged that he was subjected to daily

harassment, he identifies only the aforementioned incidents. We are

not persuaded that they are sufficient to state an actionable claim of

harassment. Accordingly, we AFFIRM the agency's dismissal of claim one.

Claim Two

With regard to issue two, the agency dismissed this issue based on

the fact that complainant disregarded the requirements of 29 C.F.R. �

1614.504 (a) by failing to notify the EEO Director in writing of the

alleged noncompliance of an EEO settlement agreement within thirty (30)

days of when the complainant knew or should have known of the alleged

noncompliance. Complainant instead of notifying the EEO Director, filed

a new EEO complaint. Specifically, complainant alleges that the agency

breached the settlement agreement by failing to perform requirement 2(a),

2(c), 2(d) of the October 2, 2003 settlement agreement, and by continuing

to harass complainant.

A breach claim is properly processed pursuant to 29 C.F.R. � 1614.504.

Therefore, we direct the agency to process the incident described in

issue two as an allegation of breach of the October 2, 2003, settlement

agreement. Accordingly, we VACATE the agency's dismissal of issue two

and REMAND issue two to the agency for further processing pursuant to

29 C.F.R. � 1614.504.

ORDER

The agency is ordered to process complainant's claim that the agency

breached the October 2, 2003 settlement agreement in accordance with 29

C.F.R. � 1614.504. Within sixty (60) calendar days of this decision

becoming final, the agency shall issue its determination, in writing,

to the complainant. If complainant is dissatisfied with the agency's

response, he may appeal to the Commission pursuant to 29 C.F.R. �

1614.504(b).

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:

______________________________ January 18, 2005

Carlton M. Hadden, Director Date

Office of Federal Operations