Blane Silversmith, Complainant,v.Mike Leavitt, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionMar 31, 2005
01a42224 (E.E.O.C. Mar. 31, 2005)

01a42224

03-31-2005

Blane Silversmith, Complainant, v. Mike Leavitt, Secretary, Department of Health and Human Services, Agency.


Blane Silversmith v. Department of Health and Human Services

01A42224

March 31, 2005

.

Blane Silversmith,

Complainant,

v.

Mike Leavitt,

Secretary,

Department of Health and Human Services,

Agency.

Appeal No. 01A42224

Agency No. 059-03

DECISION

The record indicates that complainant filed his complaint on September 25,

2003. Upon review, the Commission finds that the agency, in its January

5, 2004 decision, misdefined complainant's claims in the complaint as

alleging that he was discriminated against based on sex and disability

when: in November 2002, he noticed two cartoons, depicting his name

on them, taped to his locker; on August 25, 2003, he was detailed to a

Material Handlers position; and on September 18, 2003, he was detailed

to a Mailroom clerk position. The agency dismissed the complaint for

failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).

After a review of the complaint, including an EEO Counselor's Report

and all documents complainant submitted to the agency, the Commission

finds that complainant's claims involved: (1) the cartoon incident, and

(2) the denial of reasonable accommodation for his light duty status.

With regard to claim (1), the Commission does not find this isolated

incident sufficiently severe or pervasive to alter the conditions of

complainant's employment such as to state a claim. See Harris v. Forklift

Systems, Inc., 510 U.S. 17, 21 (1993); Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997). It is noted that complainant

does not indicate that the alleged incident in November 2002 occurred

on any other occasions.

With regard to claim (2), the Commission notes that the agency,

in its decision, failed to address the alleged denial of reasonable

accommodation. Since the agency's omission of a claim is considered

as the dismissal of such, the Commission finds that the agency failed

to provide proper grounds for such dismissal under the regulations.

Therefore, the Commission finds that the agency's decision dismissing

claim (2) by failing to address such was improper. See Knapp

v. Department of the Navy, EEOC Request No. 05940662 (January 23, 1995).

Complainant indicated that the alleged detail to a Material Handlers

position did not accommodate his light duty status since it required

him to lift, bend, move heavy materials, and to use his lower back which

were outside the scope of his medical restrictions. In order to avoid

that detail, complainant indicated that he used annual leave during the

relevant time period. The agency stated that complainant was provided

with accommodation in his subsequent detail to a Mailroom clerk position.

However, complainant indicated that the position did not provide him with

accommodation for his light duty status. Specifically, complainant stated

that in that position, he was still subjected to patient care workloads

and was required to push and pull beyond his weight limitations of 20 lbs.

Thus, claim 2, alleging a denial of a reasonable accommodation in August

and September 2003, states a claim.

Accordingly, the agency's decision dismissing claim (1) is hereby

AFFIRMED. The agency's decision dismissing claim (2), as redefined in

this decision, is hereby REVERSED. Claim (2) is REMANDED for further

processing in accordance with the Order below.

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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

March 31, 2005

__________________

Date