0120070083
02-06-2007
Michael L. Bell, Complainant, v. Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.
Michael L. Bell,
Complainant,
v.
Dr. Donald C. Winter,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120070083
Agency No. DON 06-65888-00857
DECISION
Complainant filed an appeal with this Commission from a final agency
decision (FAD) dated August 24, 2006, 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.1 In his complaint, complainant alleged that he was subjected
to discrimination based on his disability (bipolar disorder) and reprisal
for prior protected EEO activity when:
1. as an accommodation for his disability of bipolar disorder, he is
permitted to take breaks as necessary to relieve work related stress,
but is being discriminated against because starting March 14, 2006,
he has been required to send emails to specially designated management
officials at the beginning and ending of each accommodation break, and
2. management has not responded to his February 2, 2006, email, sent
in his capacity of a union official, asking about the daily starting
window time.
The FAD dismissed the complaint for failure to state a claim. Regarding
claim 1, the FAD reasoned that complainant is not aggrieved because
he was granted his accommodation of taking breaks as needed, and the
notification tracking requirements does not render complainant aggrieved.
Regarding claim 2, the FAD reasoned that the matter failed to state
a claim because it regards the grievance process, and is outside the
purview of the EEO process.
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra. We find
that the actions claimed of in claims 1 and 2 would not reasonably likely
deter protected activity.
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). Applying this, we find claim
1 fails to state a claim. Moreover, claim 2 fails to state a claim
because it goes to complainant's rights under the grievance process,
not the EEO process. Baisden v. United States Postal Service, EEOC
Appeal No. 01A32044 (February 10, 2003).
Accordingly, the FAD is affirmed.
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 (S0900)
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 (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
February 6, 2007
__________________
Date
1 In response to complainant's appeal, the agency argues the appeal was
untimely filed. A postal domestic return receipt reveals complainant
received the FAD on August 29, 2006. He did not file his appeal until
October 3, 2006, beyond regulatory 30 calendar time limit to do so.
29 C.F.R. � 1614.402(a). The FAD stated it included appeal rights as
an enclosure to the FAD. The record does not contain a copy of the
appeal rights enclosure. Accordingly, the record does not establish
that complainant was notified of his appeal rights. For this reason,
we deem his appeal to timely filed.
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0120070083
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120070083