01a54716
11-10-2005
Jonathan Clausen, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Jonathan Clausen v. Department of Transportation
01A54716
November 10, 2005
.
Jonathan Clausen,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A54716
Agency No. DOT-2005-18807- FAA-03
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated May 24, 2005, 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.
Complainant's October 15, 2004 complaint included a seven page
narrative description of the incidents of discrimination, together
with lengthy background information. The agency framed five claims
within complainant's complaint and dismissed the complaint pursuant to
29 C.F.R. � 1614.107(a)(1) for failure to state a claim on the grounds
that complainant was not an aggrieved individual.
We find that a fair reading of complainant's complaint includes the
following claims of discrimination based on disability:
After being injured on the job May 5, 2000, members of the management
allowed unfounded scuttlebutt and skepticism about complainant's injury
to circulate unchallenged.
In June 2000, management denied complainant's request for a print
(picture) of the tower where complainant previously worked as a memento,
routinely given to exiting employees with signatures of former co-workers
and staff.
In 2004, the Chief of the Facility denied complainant's request that he
address rumors regarding complainant's injury.
On December 30, 2002, complainant was medically disqualified as an
Air Traffic Controller and thereafter the agency failed to reassign
complainant to other available facility duties, while another disabled
employee was given a permanent staff position in May or early June 2004.
On August 19, 2004, complainant's request to be reassigned to the A80
Staff Office was denied.
The regulation set forth at 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).
We find that the incidents described in complainant's complaint, in
which he alleges that the agency has failed to adequately address rumors
regarding complainant's medical condition and attacks on complainant's
reputation (claims (1) and (3)) fail to state a claim. We find that
complainant was not personally subjected to derogatory comments, nor
was he confronted with severe or pervasive remarks in the work place
sufficient to state a claim of harassment. We find claims (1) and (3)
are properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
We find that claim (2) alleges that complainant has been denied a
service memento that he claims is routinely given to departing employees.
We find that complainant has described a loss that he suffered as a result
of discrimination that pertains to a term, condition or privilege of
employment. Accordingly, we find that claim (2) is improperly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1).
Claims (4) and (5), as defined herein and further detailed in
complainant's complaint, allege that complainant has been denied a
reasonable accommodation and reassignment to a position in the agency,
consistent with his medical restrictions. Complainant has stated a
claim for which there is a remedy. Accordingly, we find the agency
improperly dismissed claims (4) and (5) as we have identified them.
We therefore AFFIRM the agency's dismissal of claim (1) and (3).
We REVERSE the agency's dismissal of claims (2), (4), and (5). Claims
(2), (4) and (5) are REMANDED to the agency for further processing as
directed 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
November 10, 2005
__________________
Date