0120102305
09-30-2010
Johnny B. Simmons, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Johnny B. Simmons,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120102305
Agency No. ARFTLOOD09MAY02316
DECISION
On May 3, 2010, Complainant filed an appeal from the Agency's April 15, 2010, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final decision and REMAMDS the complaint for further processing.
ISSUE PRESENTED
The issue presented is whether the agency investigated the entirety of Complainant's complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Security Guard for the Directorate of Emergency Services Security Force at Fort Leonard Wood in Fort Leonard Wood, Missouri.
On July 27, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of disability and in reprisal for prior protected EEO activity arising under Section 501 of the Rehabilitation Act of 1973 when:
1. on or about April 10, 2009, he was sent to a mental health provider for evaluation and he was sent home by that provider; and
2. on May 13, 2009, after being medically released he was called at home by a supervisor and told to come in and take a Physical Agility Test (P.A.T.) on his day off.
By letter dated September 10, 2009, the Agency defined Complainant's complaint as listed above, and stated that it would "accept both claims for investigation as follows." The letter, however, then listed issue 2, regarding the Physical Agility Test, two times, but omitted any mention of issue 1. In its letter of October 8, 2009, requesting the assignment of an EEO Investigator, the Agency listed both issues 1 and 2. However, the EEO Investigator only investigated the facts and circumstances related to issue 2.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). In accordance with Complainant's request, the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant disputed some of the factual and legal findings in the final decision. The Agency opposed Complainant's appeal and urged the Commission to affirm its decision.
ANALYSIS AND FINDINGS
Complainant's formal complaint on July 27, 2009 listed two issues on which he claimed he had been discriminated against, that he had been sent to a mental health provider for evaluation and sent home, and that he had been called to come in to take a Physical Agility Test on his day off. The Agency's letter accepting the complaint lists both issues. The Agency's letter requesting an EEO Investigator lists both issues. There is no explanation in the record as to why the EEO Investigator only investigated issue 2. We do not find any correspondence from Complainant in which he withdrew issue 1 from his complaint. We also do not find any correspondence in the record in which the Agency dismissed issue 1 for one of the reasons listed at 29 C.F.R. � 1614.107(a). Although at the beginning of the Fact Finding Conference, the EEO Investigator alludes to his "attempt[s] to clarify the [accepted] claim," there is no explanation as to what needed to be clarified. Fact Finding Conference (FFC) Transcript, p. 3. We note that at the Fact Finding Conference, in Complainant's testimony, he attempted to discuss issue 1. The EEO Investigator does not allow him to continue, stating that "it's not the issue here." FFC Transcript, pp. 7-8. We find that the Agency has failed to properly address the accepted issues in Complainant's complaint.
CONCLUSION
Based on a thorough review of the record, we find that the Agency has not addressed the merits of all the issues in Complainant's complaint. We therefore VACATE the decision and REMAND it for further processing in accordance with our ORDER below.
ORDER
The Agency is ordered to conduct an investigation with respect to issue 1 as indentified as above, in accordance with 29 C.F.R. � 1614.108. Complainant shall cooperate with the Agency's investigation. If Complainant wishes to withdraw issue 1 from his complaint, he shall notify the Agency in writing. 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, addressing the merits of issues 1 and 2 at that time.
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 (R0610)
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 (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
___9/30/10_______________
Date
2
0120102305
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102305