Allen P. Spencer, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMar 17, 2003
01A03899 (E.E.O.C. Mar. 17, 2003)

01A03899

03-17-2003

Allen P. Spencer, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.


Allen P. Spencer v. Department of Agriculture

01A03899

03-17-03

.

Allen P. Spencer,

Complainant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A03899

Agency No. 911103, 920919, 940106, 940523, 940923, 970808

Hearing Nos. 370-98-X2561, X2562, X2563, X2564, X2565 and 370-99-X2009

DECISION

Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's

appeal from the agency's final order in the above-entitled matter.

Complainant alleged that the agency had discriminated against him on the

bases of race (African-American), color (Brown), age (D.O.B. 5/21/38),

and reprisal for prior EEO activity when:

(1) in Complaint No. 911103, (1) he was moved from a private office into

an open bay area; (2) the Administrative Officer delayed performance

awards for his subordinates; and (3) he was issued a performance

appraisal for fiscal year 1991 of fully successful;

in Complaint No. 920919, (4) he was charged with absence without leave

by the Land Management Planning (LMP) Officer; (5) the Fire Management

Officer wrote comments on a letter; (6) the Forest Geologist removed

equipment without his authorization; and (7) there were delays in

auditing and filling positions on his staff;

in Complaint No. 940106, (8) he was removed from a temporary promotion

as LMP Officer and was prohibited from entering the personnel management

portion of the building; and (9) he was suspended without pay for ten

(10) days;

in Complaint No. 940523, (10) he was not promoted noncompetitively to

GS-12; (11) the agency failed to consider the impact on him of promoting

other employees noncompetitively to GS-12; (12) the agency allegedly

assigned grade-controlling duties to other employees, resulting in their

promotions to GS-12; (13) the agency failed to utilize his skills fully;

(14) the agency delayed an audit of his position; and (15) the agency

withheld classification and funding of a GS-12 Group Leader position;

in Complaint No. 940923, (16) he was issued a letter prohibiting him

from entering the personnel management portion of the building; and

in Complaint No. 970808, (17) his competitive temporary promotion to

GS-12 was untimely and was not converted to a permanent GS-12 position.

After a review of the record in its entirety, including consideration

of all statements submitted on appeal, it is the decision of the

Equal Employment Opportunity Commission to affirm the agency's final

order because the Administrative Judge's ultimate finding, that

unlawful employment discrimination was not proven by a preponderance

of the evidence, is supported by the record. We also find that the

Administrative Judge's issuance of a decision without a hearing, for

part of the record, was appropriate and a preponderance of the record

evidence does not establish that discrimination occurred.

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

____03-17-03______________

Date