0120093514
04-06-2010
Howard Gady, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Howard Gady,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120093514
Agency No. 096809800919
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 20, 2009, declining his request to reopen his
complaint of unlawful employment discrimination in violation of 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 in the form of harassment on the bases of
disability (Hypertension, Heart Disease1) and reprisal for prior protected
EEO activity under a statute that was unspecified in the record when:
1. In January 2009 management took away a parking space which complainant
had used for several years due to medical limitations;
2. On January 14, 2009 complainant was notified there had been a lapse in
his clinical privileges from March 2008 to January 2009 due to information
missing from his Individual Credentials File (ICF);
3. On February 5, 2009 complainant was referred for a Provider Wellness
Committee (PWC) investigation for his inability to perform Basic Life
Support (BLS) due to medical limitations for which he had been receiving
accommodation since 1988; and
4. On March 3, 2009 complainant was provided with a Memorandum for the
Record, which suggested the PWC had conducted an inquiry into several
areas which were beyond the scope of the BLS requirement mentioned on
the initial letter.
The record shows that on June 15, 2009, complainant signed a form
stating:
I wish to withdraw my discrimination complaint voluntarily. I am doing
so without coercion or duress. I understand that by voluntarily
withdrawing my complaint, processing of the complaint will cease.
I also understand that my signature on this statement constitutes full
and complete withdrawal of my complaint and that I waive my right to
sue over this matter or raise this issue(s) in future litigation.
The very next day, complainant wrote to the agency EEO office seeking
to rescind his withdrawal. Complainant stated that "the signature
marked voluntary was the solution drawn up by the investigator . . . as
to the only possible way to me for not signing their legal document."
It appears from the record that by "their legal document" complainant is
referring to a draft settlement agreement which he and the agency were in
the process of negotiating. Complainant further stated "I signed the
(withdrawal) because it was expressed as the only way to resolve the
problem at that time (illegible)." Complainant further commented that
he felt it was unfair that the agency had legal counsel and he did not.
In its FAD, the agency denied complainant's request to reinstate his
complaint, finding that complainant failed to show that he signed the
withdrawal under duress or coercion. The FAD found that complainant
knowingly signed the withdrawal and his action was voluntary. On appeal,
complainant argues that the fact that the withdrawal form was written
by the investigator indicates that the atmosphere was intimidating.
The Commission has held that the party raising the defense of coercion
or duress must show that there was an improper threat of sufficient
gravity to induce assent to the document and that the assent was in
fact induced by the threat. Such a threat may be expressed, implied
or inferred from words or conduct, and must convey an intention to
cause harm or loss. A complainant's bare assertions will not justify
a finding of coercion. Cannella v. Department of Veterans Affairs,
EEOC Appeal No. 01995444 (December 5, 2000). Following a review of the
record, the Commission finds that complainant has not met his burden
of establishing that he was coerced into signing the withdrawal form.
We therefore affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the
Court 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
April 6, 2010
__________________
Date
1 Complainant listed additional disabilities in pen that are illegible.
??
??
??
??
2
0120093514
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093514