01974961
06-09-1999
Ruel J. Yarnell, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Ruel J. Yarnell v. Department of Defense
01974961
June 9, 1999
Ruel J. Yarnell, )
Appellant, )
)
v. ) Appeal No. 01974961
) Agency No. DT-97-046
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
______________________________)
DECISION
Appellant timely initiated an appeal to the Equal Employment Opportunity
Commission (EEOC) from the final decision of the agency concerning
appellant's allegations that the agency violated the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq. The issue on appeal
is whether the agency properly dismissed the allegations in appellant's
complaint for failure to state a claim and for untimely EEO contact.
The record shows that appellant requested an EEO counselor on February 24,
1997 and had an initial EEO interview on March 5, 1997. Appellant alleged
disability discrimination when:
(a) he was not offered the opportunity to work overtime on February 25
and March 3 and 4, 1997 while another employee was permitted to accomplish
his duties during an overtime assignment;
(b) after he began seeking treatment for his occupational injury of
December 19, 1994, his supervisor required him to submit a CA-17 (Duty
Status Report) form completed by his doctor every 30 days;
(c) after his occupational injury of December 19, 1994, his supervisor
failed to permanently assign him to a light duty position; and,
(d) at the time of his on-the-job injury, his supervisor (S-1), failed
to counsel him regarding his entitlements under the Workers Compensation
Program resulting in his having to use his annual and sick leave for
absences associated with his injury and the initial denial of his Workers'
Compensation claim.
The agency dismissed allegations a, b, and c for failure to state a claim.
In this regard, the agency stated that appellant was currently on light
duty performing clerical work and that the overtime work appellant had
requested was not within his physical limitations. In addition, the agency
stated that it was necessary for appellant to periodically submit a CA-17
in order to determine the status of his condition and to make necessary
adjustments to his duty assignments.
The agency also dismissed allegations b, c, and d for untimely EEO
contact. Regarding allegation b, the agency stated that the requirement
to submit a CA-17 was placed upon appellant shortly after he first sought
medical attention on March 5, 1995. Respecting allegation d, the agency
noted that appellant's Workers Compensation claim was initially denied
on July 17, 1995 after appellant failed to respond to a request from
the Department of Labor for additional information.
EEOC Regulation 29 C.F.R. �1614.107(a) states that an agency shall
dismiss a complaint or a portion of a complaint which fails to state a
claim. In order to state a valid claim of discrimination under Title VII
an employee must show that he suffered a loss or harm affecting a term,
condition or privilege of his employment. See Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). EEOC Regulation
29 C.F.R. �1614.107(b) states that an aggrieved person must initiate
contact with an EEO Counselor within forty-five (45) calendar days of
the matter alleged to be discriminatory.
After careful review, we find that the agency improperly dismissed
allegation (a) for failure to state a claim. The agency's contention
that appellant could not have feasibly been granted overtime work on the
days in question relates more to the merits of appellant's claim than to
whether the allegation states a valid claim under our regulations. We find
that the agency improperly dismissed allegation (b); requiring appellant
to regularly submit a CA-17 report from his physician every thirty days
renders appellant aggrieved. In addition, the record shows that appellant
was required to submit a duty status report within forty-five days of the
date of his initial EEO contact on February 18, 1997 which renders his
allegation timely. We find that the agency properly dismissed allegation
(d). Assuming that appellant stated a valid claim of discrimination,
appellant contacted an EEO Counselor long after the agency's alleged
failure to properly counsel him about the Workers' Compensation Program
and after the alleged problems which resulted from this.
Finally, concerning allegation (c), we find that the record is unclear
with regard to the exact nature of appellant's allegation. Specifically,
it is not clear whether appellant is alleging that the agency failed
to reasonably accommodate his disability or whether he has simply not
received the appropriate paperwork relating to the agency's efforts to
accommodate him. Accordingly, we find that the agency should request
clarification from appellant about the nature of allegation (c) and
thereafter either dismiss the allegation or continue processing it in
accordance with the order below.
ORDER (E1092)
Within thirty (30) days of the date this decision becomes final, the
agency is ORDERED to process allegations (a) and (b) in accordance with
29 C.F.R. �1614.108. Within 30 days of the date this decision becomes
final, the agency shall also request, in writing, clarification from
appellant with regard to allegation (c). Thereafter, the agency shall
either dismiss this allegation or continue processing it in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
June 9, 1999
DATE Carlton Hadden, Acting Director
Office of Federal Operations