01983610
05-24-1999
Billie R. Brown, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency
Billie R. Brown, )
Appellant, )
) Appeal No. 01983610
v. ) Agency No. 970033
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency )
)
DECISION
INTRODUCTION
Appellant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision concerning his
complaint of unlawful employment discrimination in violation of Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq,
and �501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791
et seq.. Accordingly, the appeal is accepted in accordance with EEOC
Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim.
BACKGROUND
Appellant filed a formal complaint on November 4, 1996, alleging
discrimination on the basis of mental disability (unspecified) and
reprisal (prior EEO activity) when on September 5, 1996, appellant
received notice that the agency filed a request for reconsideration with
the Commission<1> which included in its investigative report certain
affidavits from agency officials stating that they opposed appellant's
reinstatement because he is a disturbed individual who could lose control
and harm others.
On January 14, 1997, the agency dismissed the complaint for failure to
state a claim, finding that the officials' statements were not personnel
actions affecting any term, condition, or privilege of appellant's
employment, and that it was the officials' obligation to provide
statements to the investigator. The agency also noted that appellant
may have untimely filed his appeal.
On appeal, appellant argues the agency's request for reconsideration is
based on animus toward him as evidenced by the officials' statements.
Appellant argues the officials' opposition to his reinstatement is
due to discrimination based on a false perceptions that he suffers from
mental disability and substance abuse.
The agency argues in its reply that it has the right to exhaust its
administrative appeal rights.
ANALYSIS AND FINDINGS
An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994). EEOC Regulation 29 C.F.R. �1614.107(a)
provides, in relevant part, that an agency shall dismiss a complaint,
or portion thereof, that fails to state a claim.
In the case at hand, the Commission agrees with the agency that there is
no evidence that appellant suffered any personal loss or harm as a result
of the statements complained of. There is no evidence the statements
were made to anyone outside of the EEO process. The Commission has held
that a remark or comment unaccompanied by concrete action is not a direct
and personal deprivation sufficient to render an individual aggrieved
for purposes of Title VII. See Simon v. USPS, EEOC Request No. 05900866
(October 3, 1990).
Further, the Commission has refused to allow the processing of a complaint
regarding the participation of employees in the investigation of an
EEO complaint. The Commission has held that allowing such complaints
would have a chilling effect on the EEO complaint process. See Calloway
v. Department of the Army, EEOC Appeal No. 01943406 (July 15, 1994). Under
this rule, the agency officials' comments made to the EEO Investigator
are not subject to challenge in a separate EEO complaint. See Androvich
v. USDA, EEOC Appeal No. 01950532 (June 11, 1996).
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
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. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
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. 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 (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
May 24, 1999
________________________ _______________________
DATE Carlton Haddon, Acting Director
Office of Federal Operations
1 The agency currently has a request for reconsideration, EEOC Request
No. 05970769, pending with the Commission.