0120101978
08-16-2010
Dennis W. Lorenzini, Complainant, v. Adrienne C. Thomas, Acting Archivist of the United States, National Archives and Records Administration, Agency.
Dennis W. Lorenzini,
Complainant,
v.
Adrienne C. Thomas,
Acting Archivist of the United States,
National Archives and Records Administration,
Agency.
Appeal No. 0120101978
Agency No. 100IKS
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 11, 2010, dismissing 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. For the reason that follow, we MODIFY the Agency's final decision.
ISSUE PRESENTED
Whether Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
BACKGROUND
In his complaint, Complainant, an Archive Technician, GS-1421-4, at the Lenexa Facility in Kansas, alleged that the Agency subjected him to discrimination on the bases of disability and reprisal (filing a worker's compensation claim), when, on September 22, 2009, he was terminated during his probationary period for "unacceptable performance".
DISMISSAL
The Agency dismissed the entire complaint, finding that Complainant cannot state a claim based on disability because in order to raise a claim of disability discrimination one must be a qualified individual with a disability. The Agency indicated that Complainant's temporary leg injury does not meet the definition of a disability. Second, the Agency noted that the EEO process addresses complaints of reprisal for engaging in EEO activity. The Agency indicated that the EEO process does not address reprisal for filing a workman's compensation claim. The Agency therefore, dismissed the entire complaint.
CONTENTIONS ON APPEAL
On appeal, Complainant, among other things, contends that the EEOC should have contacted a (named) employee to confirm a particular manager's "disdain for workman's comp claims." The Agency asks the Commission to affirm its dismissal of the complaint.
ANALYSIS
The Commission finds that Complainant has shown an injury or harm to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The question of whether Complainant was "an individual with a disability", within the meaning of the Rehabilitation Act goes to the merits of the termination action, and is irrelevant to the procedural issue of whether Complainant has stated a justiciable claim. See Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (August 15, 1991). Therefore, we find that the Agency improperly dismissed Complainant's disability claim for failure to state a claim.
As to the reprisal claim, since Complainant has not alleged that he engaged in any prior EEO activity, and states that the reprisal was due to his filing a worker's compensation claim, we AFFIRM the Agency's dismissal of the retaliation claim.
CONCLUSION
The Commission concludes that the Agency's final decision must be MODIFIED. The Agency properly dismissed the basis of reprisal with respect to Complainant's termination claim for failure to state a claim. Accordingly, the Agency's final decision dismissing that claim is AFFIRMED. However, the decision is REVERSED to the extent that the Agency dismissed the termination claim on the basis of disability. The disability claim is hereby REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 (T0610)
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 (Z0610)
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
____8/16/10______________
Date
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0120101978
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101978