0120113497
12-05-2012
Reginald Hill, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Reginald Hill,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120113497
Agency No. 200I-0548-2011101897
DISMISSAL OF APPEAL
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated May 24, 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., Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of event giving rise to this complaint, Complainant worked as an Accounts Receivable Technician at the Agency's Veterans Affairs Medical Center (VAMC), West Palm Beach in Florida.
On March 19, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on his disability and reprisal for prior protected EEO activity under Title VII and the ADEA when his request for nine hours of leave for February 7, 2011, to complete an affidavit for the investigation on his underlying EEO complaint 200I-0548-2010104554 was denied. Complainant initially made a request in the early afternoon on February 4, 2011, for nine hours of authorized absence, indicating he needed it as a reasonable accommodation for disability.
In a February 4, 2011, email to Complainant the Chief of the Medical Administration Service explained to him that his request for authorized absence was denied because he was granted an initial four hours at work to complete his response (affidavit) at his current workstation, and up to four hours more there if he asked. The Chief was Complainant's second line supervisor while Complainant was on a detail. Less than 1/2 an hour later Complainant requested nine hours of annual leave for the same purpose, above. Complainant indicates that the Agency did not approve the request.
Complainant contends that the Agency denied his request for reasonable accommodation for leave so he could complete the affidavit at home, which he needed because he could not carry the documentation around the facility due to his physical limitations.
In its FAD the Agency characterized the complaint as whether Complainant was discriminated against based on disability when on February 2, 2011, his request for eight hours of official time to prepare for the investigation of his complaint was denied. A review of the record, including Complainant's additional documentation on appeal on his leave requests/denial reveals that the complaint actually regards the denial of nine hours of leave for February 7, 2011, for him to complete his affidavit. He alleged reprisal in the narrative portion of his complaint, as well as disability discrimination.
The Agency dismissed the complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1). It reasoned that a complaint regarding the denial of official time does not state a claim for relief, because the focus is not on its motivation in denying official time, not whether it violated the Commission's official time regulation.
On or about February 11, 2011, Complainant also filed an amendment on underlying complaint 200I-0548-2010104554, regarding the denial of leave issue. In its September 21, 2011, FAD on this complaint the Agency ruled that while Complainant appeared to raise an issue of denial of official time in his amended complaint, he also referred to a denial of a reasonable accommodation and the Agency interfering with the EEO process when his request for leave was denied for February 7, 2011.1 The Agency referred the matter to EEO counseling as a separate complaint. The record does not reflect the status of this matter.
ANALYSIS AND FINDINGS
In its May 24, 2011, FAD, the Agency's mischaracterized Complainant's complaint as regarding the denial of official time. Official time is permitting an agency employee to participate in the EEO administrative process while on duty in pay status. 29 C.F.R. � 1614.605(b). The Agency gave Complainant official time. Complainant's complaint actually regards the denial of leave so he could complete his affidavit for his EEO complaint at home.
In the Agency's subsequent FAD dated September 21, 2011, the Agency properly characterized the complaint as regarding the denial of leave to complete his affidavit for an EEO investigator.2 We find that the Agency in effect rescinded its May 24, 2011, FAD in its September 21, 2011, FAD. Since the Agency did not dismiss this claim in its September 21, 2011, FAD, there is nothing for us to rule upon at this time. Accordingly, Complainant's appeal is DISMISSED.
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
December 5, 2012
__________________
Date
1 Complainant filed an appeal from this FAD. The Commission assigned the appeal EEOC Docket No. 0120120323. It is pending.
2 In its September 21, 2011, FAD, the Agency defined the amended complaint as regarding the denial of eight hours of administrative absence. It actually regarded the denial of nine hours of administrative absence or annual leave.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120113497
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113497