01a05760
01-09-2001
Winford J. House, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Winford J. House v. Department of Navy
01A05760
January 9, 2001
.
Winford J. House,
Complainant,
v.
Richard J. Danzig,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A05760
Agency No. 00-44466-006
DECISION
Complainant timely initiated an appeal of a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
on the bases of race (African-American), sex (male), age (over 40),
disability (atrial fibrillation), and reprisal (prior EEO activity)
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
For the reasons stated herein, the agency's FAD is modified.
According to the record, complainant was a Sheet Metal Mechanic, WG-10,
at a Florida facility of the agency. In the Fall of 1998, complainant
submitted an application for disability retirement<2> to the Office of
Personnel Management (OPM). As requested by OPM, the agency provided a
statement to OPM in connection with complainant's retirement application.
In its statement, the agency indicated that complainant was meeting all
of the physical requirements of his position but that his attendance
was unacceptable. Subsequently, OPM denied complainant's retirement
application because the evidence submitted did not support the conclusion
that he was unable to perform the duties of his position. Believing he
was a victim of discrimination, complainant sought EEO counseling and,
subsequently, filed a complaint alleging that the agency discriminated
against him based on race (African-American), sex (male), age (over 40),
disability (atrial fibrillation), and reprisal (prior EEO activity) when
it (1) submitted false and misleading information to OPM which resulted
in the denial of his retirement application, (2) denied complainant
official time for EEO and MSPB matters, and (3) threatened complainant
with termination.
The agency issued a FAD dismissing claims (1) and (2) for failure to state
a claim and claim (3) for untimely EEO contact. This appeal followed.
Claim (1) was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
Claim (1) would have been more appropriately dismissed pursuant to
29 C.F.R. � 1614.104(a)(4). A mixed case complaint is a complaint of
employment discrimination filed with a federal agency, related to or
stemming from an action that can be appealed to the MSPB. 29 C.F.R. �
1614.302(a)(1). An aggrieved person may initially file a mixed case
complaint with an agency or may file a mixed case appeal directly with
the MSPB, pursuant to 5 C.F.R. � 1201.151, but not both. 29 C.F.R. �
1614.302(b). 29 C.F.R. � 1614.107(a)(4) provides that an agency shall
dismiss a complaint where the complainant has raised the matter in an
appeal to the MSPB. In this case, complainant filed an appeal regarding
claim (1) with the MSPB prior to filing a complaint with his agency on
the same matter.
Claims (2) and (3), however, were properly dismissed. In reference
to Claim (2), complainants are entitled to reasonable official time
to process their EEO complaints. What is reasonable depends on the
individual circumstances of each complaint, however, the regulation does
not envision large amounts of official time for preparation purposes.
See 29 C.F.R. � 1614.605; EEOC Management Directive (MD) 110, as revised,
November 9, 1999.
The record focused on complainant's request for time to attend
a MSPB hearing for his appeal of OPM's denial of his disability
retirement application. The Commission does not have jurisdiction over
non-discrimination, MSPB appeals or the official time needed to address
them. Assuming we had such jurisdiction, the record suggests that the
agency granted complainant official time to attend the MSPB hearing
scheduled for June 30, 2000. The granted time, however, was not needed
because the hearing was postponed due to complainant's hospitalization
and the appeal was dismissed without prejudice.
Regarding claim (3), the record disclosed that the alleged discriminatory
event occurred January 2000<3>, but complainant did not initiate contact
with an EEO Counselor until June 2000, which is beyond the forty-five
(45) day limitation period. On appeal, no persuasive arguments or
evidence have been presented to warrant an extension of the time limit
for initiating EEO contact.
Based on the above, the agency's final decision dismissing claims (1),
(2) and (3) is AFFIRMED.
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 (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
January 9, 2001
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The record contained a letter from a cardiologist who indicated that
complainant has atrial fibrillation which has been unresponsive to
medication. The cardiologist recommended that complainant receive a
permanent pacemaker. He noted that if complainant received a permanent
pacemaker, he would have to avoid areas of high magnetic field, which
is where complainant claimed his job is located.
3Complainant alleged that the discriminatory incident took place in
April 2000. However, the responsible management official and the witness
complainant cited both indicated that the incident to which complainant
referred took place in January 2000.