01A22283_r
07-30-2002
Ivan K. Hughes, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Ivan K. Hughes v. Department of the Army
01A22283
July 30, 2002
.
Ivan K. Hughes,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A22283
Agency No. BWHJFO0111B0180
DECISION
Complainant filed the instant appeal from an agency final decision dated
January 17, 2001, dismissing his complaint of unlawful discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. and Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In
his complaint, complainant alleged that he was subjected to discrimination
on the bases of sex and disability when<1>:
Complainant was asked to perform tasks outside his medical restrictions;
Complainant was issued a Notice of Proposed Removal, dated October
10, 2001.
Complainant was harassed by his supervisor which harassment included
calling complainant "guy", "bubba" and "man" even after complainant had
asked that he be called by his name and scrutinizing complainant's attire
and gum/candy chewing.
The agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(1)
finding that none of complainant's claims state a claim upon which
relief may be granted. The agency noted that complainant's impairment
(feet-activated arthrosis) does not render complainant a qualified
individual with a disability. Further, the agency found that since the
proposed removal was cancelled, complainant's claim 2 must be dismissed
as a preliminary action under 29 C.F.R. �1614.107(a)(5). Lastly, the
alleged incidents of harassment (claim 3) described by complainant do not
rise to a level sufficiently severe or pervasive to state a justiciable
claim of harassment under Title VII.
After a review of the agency's final decision, the Commission finds
that the agency has addressed the merits of claim 1 without a proper
investigation as required by the regulations. We find that the agency's
articulated reason for the action in dispute, i.e., that complainant
is not a qualified individual with a disability, goes to the merits of
complainant's complaint, and is irrelevant to the procedural issue of
whether he has stated a justiciable claim. See Osborne v. Department of
the Treasury, EEOC Request No. 05960111 (July 19, 1996); Lee v. United
States Postal Service, EEOC Request No. 05930220 (August 12, 1993);
Ferrazzoli v. United States Postal Service, EEOC Request No. 05910642
(August 15, 1991). Therefore the agency improperly dismissed claim 1
for failure to state a claim pursuant to 29 C.F.R. �1614.107(a)(1).
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides, in part,
that the agency shall dismiss a complaint that alleges that a proposal to
take a personnel action, or other preliminary step to taking a personnel
action, is discriminatory. We concur with the agency's finding that claim
2 is not an adverse employment action because it only proposes to take
an action that, in fact, did not occur. Claim 2 was properly dismissed.
Similarly, we concur with the agency's finding that the harassment
described in claim 3 is neither sufficiently severe or pervasive to
render complainant aggrieved. Claim 3 was properly dismissed pursuant to
29 C.F.R. � 1614.107(a)(1). Furthermore, claims 2 and 3, when considered
together, are insufficient to state a claim of harassment.
Accordingly, the agency's final decision dismissing claim 1 is REVERSED.
Claim 1 is hereby REMANDED to the agency for further processing in
accordance with this decision and the Order below. We AFFIRM the
agency's dismissal of claims 2 and 3, for the reasons set forth herein.
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
July 30, 2002
__________________
Date
1We have numbered the claims of complainant's
complaint for reference.