01A12543_r
05-31-2001
Timothy Schweri, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Timothy Schweri v. Department of Commerce
01A12543
May 31, 2001
.
Timothy Schweri,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A12543
Agency No. 00-63-03224
DECISION
Complainant appealed from the agency's February 5, 2001 dismissal of
his employment discrimination complaint. In his complaint, complainant
alleged discrimination on the basis of retaliation for his disrespect
for security personnel when he was terminated. The agency dismissed
the complaint for failure to state a claim, finding that complainant
failed to allege a discriminatory basis. On appeal, complainant argues,
for the first time, that he was discriminated against due to disability
(schizoid personality).
The agency may dismiss complaints that fail to state a claim. See 29
C.F.R. � 1614.107(a)(1). To state a claim, complainant must allege present
harm inflicted on the basis of race, sex, religion, national origin, age,
disability, or prior protected activity. See Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). Concerning claims
of reprisal, EEOC Regulations prohibit retaliation against an individual
for opposing any practice made unlawful by Title VII of the Civil
Rights Act (Title VII) (42 U.S.C. � 2000e et seq.), the Equal Pay Act
(29 U.S.C. � 206(d)), the Age Discrimination in Employment Act (ADEA)
(29 U.S.C. � 621 et seq.), the Rehabilitation Act (29 U.S.C. � 791 et
seq.), or for participating in any stage of administrative or judicial
proceedings under these statutes. 29 C.F.R. � 1614.101(b).
In the present claim, complainant has provided no evidence of his prior
protected activity. Therefore, his claim of reprisal discrimination
fails to state a claim. However, complainant, on appeal, raises the
basis of disability. Generally, complainants may add, delete, or amend
bases without changing the identity of the claim. See Dragos v. United
States Postal Service, EEOC Request No. 05940563 (January 19, 1995)
(citing Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970).
Although complainant's original basis is invalid, the Commission finds
that complainant may add the basis of disability to his claim.<1>
See Malone v. United States Postal Service, EEOC Appeal No. 01995197
(February 7, 2001); McLachlan v. Department of the Army, EEOC Appeal
No. 01990339 (March 20, 2000). When considered, his complaint raised
on the basis of disability states a claim.
CONCLUSION
To the extent that complainant alleged harm on the basis of reprisal,
the agency's dismissal is AFFIRMED. Concerning his claim raised on
the basis of disability, the agency's dismissal is REVERSED, and the
complaint based on disability is REMANDED for further processing in
accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0501)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant 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. �� 1614.407 and 1614.408.
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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
May 31, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Although the Commission has affirmed the dismissal of bases raised for
the first time on appeal, the rationale from such dismissals does not
apply to the present case. See Haddon v. United States Postal Service,
EEOC Request No. 05950688 (April 4, 1996) (affirming dismissal where
complainant failed to raise a protected basis until appeal). Unlike in
Haddon, the agency never requested that complainant provide an adequate
basis for his complaint. See Logan v. United States Postal Service,
EEOC Appeal No. 01980770 (October 23, 1998) (considering bases raised
for the first time on appeal).