01994213
05-15-2001
Gregory A. Sheets, Complainant, v. Robert B. Pirie, Jr., Acting Secretary, Department of the Navy, Agency.
Gregory A. Sheets v. Department of the Navy
01994213
May 15, 2001
.
Gregory A. Sheets,
Complainant,
v.
Robert B. Pirie, Jr.,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01994213
Agency No. 99-00264-003
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated April 4, 1999 dismissing his complaint of unlawful
employment 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. In his complaint, complainant alleged
that he was subjected to discrimination on the bases of disability
(cervical strain, cervical discectomy/fusion) and in reprisal for prior
protected activity under the Rehabilitation Act when:
On October 28, 1998, he was denied a loan from the Marine Federal Credit
Union because of �stability of income/uncertainty� as a result of his
not being brought back to permanent work status in a timely manner;
On December 1, 1998, an employee of the Civilian Human Resource Office,
Quantico (CHRO-Q), sent a fax to complainant's physician indicating
�...mounting congressional interest and pressure on [the Navy's] ability
to offer [complainant] suitable employment...�, causing complainant's
physician to provide inaccurate information with regard to complainant's
health; and
CHRO-Q interfered with complainant's opportunity for a job offer when
they removed a memo, dated August 25, 1998, from his OF-612, application
for employment.
The agency dismissed these claims pursuant to EEOC Regulation 29
C.F.R. �1614.107(a)(1), for failure to state a claim. From this decision
complainant now appeals. For the following reasons we AFFIRM in part
and REVERSE in part the agency's decision.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint that fails to state a claim. 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, .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).
Issue (1)
In the instant case, the record reflects that in May, 1997, complainant
sustained a work-related injury that subsequently required him to undergo
surgery in June, 1998. After the surgery, his physical limitations
prevented him from returning to his previous position and he was placed
in the workman's compensation program. On October 28, 1998, complainant
learned that he had been denied a loan on the basis of �stability of
income/uncertainty�. Complainant was informed by the bank that workman's
compensation is not considered a stable source of income. Complainant
then filed a claim against the agency for failing to bring him back to
permanent work status in a timely fashion. In his appeal, complainant
contends that his not being put back on permanent work status makes him
an aggrieved employee, as he was left in an unstable employment condition
and his time on workman's compensation is not counted toward retirement.
In its response, the agency states that the denial of a loan is not an
agency action and that complainant has failed to show how the denial of
the loan affected a term, condition, or privilege of his employment.
The Commission finds that the agency erred in dismissing issue (1),
as the crux of complainant's claim is not the denial of the loan, but
the fact that he had not been brought back to permanent work status in
a timely fashion. The agency's failure to place him on permanent work
status states a claim as it affects a term of his employment. We find
that as to issue (1), complainant is an �aggrieved� employee within the
meaning of the regulations and therefore we REVERSE the agency decision
and REMAND this claim.
Issue (2)
As to issue (2), the record indicates that on December 1, 1998,
a letter from the CHRO-Q office was faxed to complainant's doctor
regarding alleged �mounting congressional interest� in the state of
complainant's employment with the Navy in light of complainant's medical
limitations. Complainant contends that this letter contained false
statements which lead his physician to provide inaccurate information
regarding the necessary restrictions for complainant's placement in an
employment position. Complainant contends that his physician provided the
inaccurate information as a result of the December 1 letter, as it led
his physician to believe that complainant had contacted his Congressman
for help in obtaining a particular position and would be willing to
work beyond his medical limitations. On appeal, complainant claims that
by lying to his physician regarding �mounting congressional interest�,
CHRO-Q is responsible for the incorrect information having been relayed.
In its response, the agency states that complainant has failed to state
a claim in that complainant's physician providing false information is
not an action that can be attributed to the agency.
We agree. The Commission finds that complainant has failed to state
a claim as to issue (2) as he has adduced no evidence to show that he
suffered any direct and personal deprivation at the hands of his employer
with regard to the December 1, 1999 letter. The actions of complainant's
physician are outside the scope of complainant's employment and therefore
do not state a claim. We therefore AFFIRM the agency's dismissal of issue
(2) under EEOC Regulation 29 C.F.R. �1614.107(a).
Issue (3)
The record indicates that on or about August 25, 1998, complainant drafted
a memo which he requested be attached to an application he had completed.
When complainant met with a staffing specialist on February 1, 1999
in order to determine his qualifications for a specific position,
he discovered that the memo had not been attached to his application
as he had requested. Complainant claims that the removal of this memo
from his application interfered with his ability to obtain a higher grade
qualification, though complainant did in fact receive the promotion to the
higher level position. On appeal, complainant contends that the action
of removing the memo from his application was an attempt by CHRO-Q to
prevent him from obtaining the higher qualification. In its response,
the agency states that the removal of the memo was not an employment
action, and that because complainant did not suffer harm as a result,
he is not aggrieved and has therefore failed to state a claim.
The Commission finds that complainant has failed to show how the alleged
incident resulted in a harm or loss regarding a term, condition, or
privilege of his employment as complainant did receive the promotion
he was seeking. Thus, the Commission finds that the agency properly
dismissed the complaint for failure to state a claim pursuant to
29 C.F.R.� 1614.107(a)(1). Accordingly, the agency's final decision
dismissing issue (3) is AFFIRMED.
In conclusion, the Commission finds that as to issue (1), the agency's
decision is REVERSED and the claim is REMANDED for further processing
in accordance with the order below. We find that issues (2) and (3)
were properly dismissed for failure to state a claim and the agency
decision as to those issues is AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 (K0900)
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)(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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 15, 2001
__________________
Date