0120073222
10-04-2007
James M. Pechacek, Complainant, v. Pete Geren, Secretary, Department of the Army, Agency.
James M. Pechacek,
Complainant,
v.
Pete Geren,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120073222
Agency No. ARTACOM07FEB01643
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision (FAD) dated June 21, 2007, 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. In his complaint, as amended, complainant alleged that he was
subjected to discrimination on the basis of disability (alcoholism) when:
1. on April 3, 2007, he was placed on administrative leave without pay
and restricted from the Detroit Arsenal,
2. he was placed under the direct supervision of the Associate Director
for Survivability Systems,
3. he was not given enough work to occupy him 40 hours a week,
4. when his suspension was initiated, he was not given a chance to
contact his union representative, he was not permitted to remove his
personal belongings, and later his laptop computer which contained
private information was given to another user,
5. management failed to inform him of the Family Medical Leave Act,
6. a manager repeatedly boasted that he could fire him, and
7. a manager would often inquire about his health, which meant he knew
complainant had a disease.1
Complainant initially filed a complaint alleging claim 1 and not allowed
to gather his personal belongings with the suspension.
Complainant was issued a proposed indefinite suspension dated April 3,
2007, pending the results of an investigation and adjudication of his
security clearance. Although termed a proposal, it contained language
placing complainant on immediate administrative leave with pay status
for at least 30 days. Complainant was placed of work with administrative
leave with pay. Effective May 7, 2007, complainant was formally suspended
without pay indefinitely, pending the above outcomes.
After complainant filed his complaint the agency asked for clarification,
specifically whether his complaint was "based on" the indefinite
suspension effective May 7, 2007. In his June 13, 2007 response,
complainant replied "no it is not." He then went on write his claim
was based on the claims identified above as 2 through 7.
The FAD dismissed claim 1 for failure to state a claim. 29 C.F.R. �
1614.107(a)(1). The FAD found that being placed on administrative leave
with pay and restricted from access to the Detroit Arsenal failed to state
a claim because complainant was not harmed. It observed complainant
specifically indicated his indefinite suspension, starting when he was
off work without pay, was not part of his complaint. This created the
strange result of complainant's complaint being interpreted by the agency
to include the paid part of his suspension, but not the unpaid part.
The FAD found claims 2 through 7 to be untimely raised with an EEO
counselor. It reasoned that complainant did not raise these claims
until his clarification letter of June 13, 2007, beyond the 45 calendar
day time limit to do so.
On appeal, complainant writes the discrimination against him is ongoing
and his complaint is timely. In response to complainant's appeal,
the agency argues that it is undisputed that the new claims complainant
raised in his June 13, 2007, clarification response occurred before he
was placed on administrative leave on April 3, 2007, because he has not
been in duty status or worked since then. It found that the June 13,
2007 date these matters were raised was beyond the 45 day time limit to
initiate EEO contact.
A review of the record shows complainant raised only the unpaid
portion of his suspension with the EEO counselor and in his complaint.
While complainant recited the April 2007 date to the EEO counselor and
in his complaint, he specifically indicated in both places that he was
challenging the "administrative leave without pay". Being restricted
from the Detroit Arsenal was part and parcel of the suspension. Hence,
when complainant wrote in his clarification response that his complaint
was not based on the indefinite suspension, he was withdrawing claim 1
and any suspension claim. Accordingly, the agency's dismissal of claim
1 is affirmed, but on the alternative grounds that complainant withdrew
the claim.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1). The counselor's report does not indicate that complainant
raised claims 2 though 7 with the EEO counselor, and complainant does
claim that he did so. Complainant first raised these claims on June 13,
2007, in response to an agency request for clarification.2 The FAD's
findings that these claims were untimely raised 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
October 4, 2007
__________________
Date
1 It is not clear whether issue 7 is an independent claim or evidence
in support complainant's other claims.
2 The exception to this is complainant alleging in his complaint
postmarked May 31, 2007, that he was not permitted to gather his personal
belongings with his suspension on or about April 3, 2007. The personal
belongings matter was raised beyond the 45 calendar day time limit.
??
??
??
??
2
0120073222
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120073222