0120112861
10-13-2011
Michael H. Memolo, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Michael H. Memolo,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120112861
Agency No. 116740001447
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated April 8, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Deputy Base Property Supply Officer at the Agency’s Marine Corps
Base in Japan.
On March 24, 2011, Complainant filed a formal EEO complaint alleging that
the Agency subjected him to discrimination on the basis of disability
(physical – prosthetic hip, steel bolts in left knee, and double
cataract surgery) when he was administered a series of field sobriety
tests, which he alleges he could not complete because of his disability.
Complainant further alleges that because he was not physically able
to pass the field sobriety tests, he was subjected to chemical testing
(breathalyzer), resulting in a citation for “sobriety refusal” and
revocation of his Status Forces Agreement driver’s license.1
It is undisputed that Complainant’s vehicle was randomly picked
for inspection by military police. The police report indicated they
detected an odor of alcohol on Complainant’s breath and attempted
to administer field sobriety tests. However, after Complainant told
the police officers that he could not pass the field tests due to his
physical disabilities, he was transported for a breathalyzer test.
Although Complainant agreed to take the test, it was determined that
he was not following instructions on breathing into the testing device,
and he was charged with “sobriety [test] refusal.” As a result, a
traffic court officer revoked Complainant’s on-base license. He later
appealed that decision to the Marine Command Inspector General in Okinawa.
On February 25, 2011, the Inspector General issued a decision denying
Complainant’s appeal and sustaining the license revocation.
In its final decision, the Agency dismissed the complaint, pursuant to
29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Among other
things, the Agency contended that driving privileges were not a term,
condition or privilege of Complainant’s employment.
The instant appeal followed. In his appeal, Complainant does not address
the procedural dismissal of his complaint. Rather, he challenges
the manner in which the sobriety tests were given in light of his
disabilities.
ANALYSIS AND FINDINGS
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because Complainant failed to show that he suffered harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. See Diaz v. Dep’t of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
It is undisputed that Complainant does not need to drive as part of
his job as a Deputy Property Control Officer, and the revocation of his
on-base driving privileges did not impact his work. Moreover, Complainant
has not alleged that he was treated differently than any other similarly
situated Agency employee. Thus, it does not appear that Complainant is
alleging that he was tested for the purpose of discriminating against him.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman
v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994);
Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).
In this case, Complainant was afforded an adjudicatory process through
the traffic court officer and the Inspector General to challenge the
decision to charge him with sobriety testing refusal and revoke his
license. These were the proper forums for Complainant to have raised his
challenges to actions which were taken by military police in this matter.
Complainant is now improperly attempting to collaterally attack the
adjudicatory decisions of the military traffic law enforcement system
through the EEO complaint process. As such, the instant complaint fails
to state a claim covered by the Commission’s regulations.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
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 (S0610)
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. 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 (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
October 13, 2011
__________________
Date
1 A Status Force Agreement license allows the holder to drive on the
military base without first obtaining a Japanese driver’s license.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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