01A00033
08-25-2000
Gerard F. Earle, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gerard F. Earle v. U.S. Postal Service
01A00033
August 25, 2000
.
Gerard F. Earle,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A00033
Agency No. 1-A-113-0047-98
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dismissing his complaint of unlawful employment discrimination
brought under Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> We accept the appeal pursuant to 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
The record shows that complainant filed a formal complaint on August 25,
1998, alleging that he was subjected to discrimination on the basis of
disability when:
(1) On May 26, 1998, complainant reported for a fitness for duty
examination with documentation from his chiropractor stating that
complainant was able to return to duty on May 30, 1998, having recovered
from a back injury sustained in a vehicle accident, but the medical unit
did not allow complainant to return to full duty until July 2, 1998,
after they received the results of a diabetes test; and
(2) On June 29, 1998, complainant's Step 2 grievance was denied.
Initially, the agency accepted claim 1, but dismissed claim 2 for
failure to state a claim because it constituted a collateral attack on
the grievance process. Complainant appealed this determination to the
Commission. The Commission affirmed the agency's dismissal of claim 2.
Earle v. USPS, EEOC Appeal No. 01990886 (September 7, 1999).
Following the investigation of claim 1, the agency issued a final decision
on September 8, 1999. The agency determined that complainant did not
respond to its notice of a request for a hearing or an immediate final
decision within thirty days of his receipt of such a notice. The agency
did not, however, issue a decision on the merits of claim 1. Instead,
the agency dismissed it for failure to state a claim, and determined that
complainant failed to show how he was aggrieved by the delay in his return
to full duty and asserted that complainant lost no wages or benefits.
On appeal, complainant argues that contrary to the agency's determination,
he lost paid work days because of the delay. Complainant argues that he
was further aggrieved when the agency's physician made an arbitrary and
unwarranted assumption that he was unable to perform his full duties
because of his diabetes, not his back injury, and that he should not
have been required to submit a glucose blood test result as a condition
to his return to employment.
In response, the agency argues that complaint decided himself not to
return to work because he wanted full duty instead of light duty because
the extra activity was better for his diabetes. The agency further
suggests that the Commission address the complaint on the merits and
decide in favor of the agency.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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).
The only proper questions in determining whether a claim is within the
purview of the EEO process are (1) whether the complainant is an aggrieved
employee and (2) whether he has alleged employment discrimination covered
by the EEO statutes. An employee is "aggrieved" if he has suffered
direct and personal deprivation at the hands of the employer. See Hobson
v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).
In claim 1, complainant claimed that although he reported for a fitness
for duty test in May 1998, with documentation reflecting that he was
capable of returning to duty on May 30, 1998, he was not allowed to
return to full duty until July 2, 1998, after the agency received the
results of a diabetes test; and that as a result of this action he lost
paid work days. Complainant's claim is sufficient to render him an
aggrieved employee. Because complainant has alleged that the adverse
action was based on physical disability, he has raised a claim within
the purview of the EEOC regulations.
Accordingly, the agency's decision to dismiss claim 1 for failure to
state a claim was improper and is REVERSED. Claim 1 is REMANDED to the
agency for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to issue a final decision on the merits of claim
1 within thirty (30) calendar days of the date that this decision
becomes final, pursuant to 64 Fed. Reg. 37,644, 37,657-37,658 (1999)
(to be codified as 29 C.F.R. � 1614.110(b)). A copy of the agency's
final decision must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
August 25, 2000
Date Carlton M. Hadden, Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.