Michael L. Bell, Complainant,v.Dr. Donald C. Winter, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionFeb 6, 2007
0120070083 (E.E.O.C. Feb. 6, 2007)

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