01A11528_r
02-12-2002
Clifton Redd, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Clifton Redd v. Department of the Treasury
01A11528
February 12, 2002
.
Clifton Redd,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A11528
Agency No. 00-1245
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated November 27, 2000, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of race (African-American) when:
The agency set out to intimidate, humiliate, and retaliate against
complainant when he returned to work by issuing him a visitor's pass on
May 22, 2000; and
Complainant discovered that he would not be reporting to his previous
assignment in the Postage Stamp Processing and Special Product Division
upon his returning to work.<1>
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 29 C.F.R. � 1614.107(a)(5), on the grounds that it was moot.
With regard to issue (1), the agency stated that complainant failed to
show that he was harmed when he was given a temporary pass on May 22,
2000, and a regular badge on May 23, 2000. In addition, the agency
stated that since complainant resigned effective September 19, 2000,
there is no reasonable likelihood that the alleged violation will recur.
With regard to issue (2), the agency states that complainant was not
returned to his previous assignment because the agency was providing
interim relief as required by the Merit Systems Protection Board (MSPB)
while the agency's appeal was pending. Furthermore, the agency notes that
the change in position did not effect the grade or pay of complainant.
The agency states that complainant resigned effective September 19,
2000, which eradicated the effects of the alleged discrimination.
On appeal, complainant states that the factual context of the issues
identified in the present complaint have been misstated. Accompanying his
appeal, complainant presents a copy of a letter submitted to the EEO
Office on December 27, 2000, alleging that he was retaliated against
and constructively discharged on September 22, 2000, by the agency's
racially hostile work environment.
We note that although the agency dismissed issue (1) on the grounds
that it was moot, we find that this issue is more properly dismissed
pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim. Specifically, we find that complainant
has failed to show a harm or loss to a term, condition, or privilege of
employment for which there is a remedy.
Similarly, we find that although the agency dismissed issue (2) on
the grounds that it was moot, this issue is more properly dismissed for
failure to state a claim. The record reveals that complainant challenged
his July 28, 1999 removal from the agency before the MSPB. The Board
mitigated the removal to a 90-day suspension in a decision dated April
14, 2000. In its Order, the MSPB stated that the agency should provide
interim relief should either party appeal the MSPB's decision. The agency
appealed the MSPB decision and ordered complainant to return to work
on May 22, 2000, in the Office of Production Management instead of the
Office of Stamp Processing, where complainant was previously assigned.
Since the agency provided complainant reinstatement per the MSPB's
Order, complainant's claim that the agency failed to return him to his
previous assignment is a matter that is properly raised before the MSPB,
not the EEOC.
Accordingly, the agency's decision to dismiss complainant's complaint
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
February 12, 2002
__________________
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
______________________________
1Complainant's complaint also included a claim that the agency's random
drug testing policy is discriminatory. The record reveals that this
issue is identical to a pending class complaint under Agency No. 99-0017.
The agency properly forwarded this issue to the agency's Office of Equal
Opportunity Program for processing. See Equal Employment Opportunity
Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 8-4, (November
8, 1999). Therefore the present decision will not address the issue of
the agency's random drug testing policy.