01972348
03-30-1999
Gary D. Lewis, Appellant, v. William S. Cohen, Secretary, Department of Defense, Defense Logistics Agency, Agency.
Gary D. Lewis v. Department of Defense
01972348
March 30, 1999
Gary D. Lewis, )
Appellant, )
)
v. ) Appeal No. 01972348
) Agency No. CA-96-006
William S. Cohen, )
Secretary, )
Department of Defense, )
Defense Logistics Agency, )
Agency. )
______________________________)
DECISION
On January 23, 1997, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on December 26,
1996, pertaining to his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq., and �501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq. In his complaint, appellant alleged that
he was subjected to discrimination on the bases of physical disability
(back and legs) and in reprisal for prior EEO activity when he was
forced to accept a downgrade to a secretarial position or be removed
from federal employment.
Appellant's complaint was accepted for investigation by letter dated
June 25, 1996, and an investigative report was completed September
6, 1996. Appellant requested a hearing before an Administrative Judge
(AJ); however, on December 20, 1996, the AJ remanded the case at the
agency's request. On December 24, 1996, the agency issued a final
decision dismissing appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(a), for failure to state a claim. Specifically,
the agency found that appellant was not "aggrieved" because he retained a
position with the agency and retained his pay. Further, the agency found
that no other position existed, within appellant's physical limitations,
for which he was qualified.
Appellant was a journeyman High Voltage Electrician with the agency, until
a series of injuries placed him in light-duty status. In 1995, appellant
was placed in a temporary secretarial position pending a re-evaluation of
his work status. The Office of Workers' Compensation Programs (OWCP)
referred appellant to a physician who placed work restrictions on
appellant because of his physical condition. In a letter dated April
24, 1996, appellant was given the option of accepting a downgrade from
an electrician to a secretarial position or being removed for physical
inability to perform the duties of his position. A letter dated May 6,
1996, explained appellant's new pay structure; although appellant was
allowed to maintain his pre-injury wages, his opportunity for raises
would be more modest than his prior pay scale.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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).
Upon review, we find that the agency improperly dismissed appellant's
complaint. Appellant's allegation of discrimination based on physical
disability, and in reprisal for prior EEO activity, falls within the
purview of EEO statutes. Appellant alleges that he was forced to accept
a downgrade to a position outside of his craft. An assignment of work
duties, affects the terms, conditions, or privileges of employment;
and appellant's allegations that he was discriminatorily downgraded
adequately states a claim of an aggrieved employee. We find that the
agency's explanation of the reason appellant was downgraded is irrelevant
to the procedural issue of whether he has stated a justiciable claim
under Title VII and the Rehabilitation Act, and improperly reaches
the merits of appellant's complaint. See Ferrazzoli v. United States
Postal Service, EEOC Request No. 05910642 (Aug. 15, 1991). Accordingly,
the agency's decision to dismiss appellant's complaint for failure to
state a claim is REVERSED. The complaint is REMANDED to the agency
for further processing in accordance with the Order below.
ORDER
The agency is ORDERED to request the assignment of an AJ to conduct a
hearing on appellant's complaint within fifteen (15) calendar days of
the date this decision becomes final. A copy of the agency's request for
assignment of an AJ must be sent to the Compliance Officer as referenced
below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
March 30, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations