David Redd, Complainant,v.Tommy G. Thompson, Secretary, Department of Health and Human Services, National Institutes of Health (Public Health Service), Agency.

Equal Employment Opportunity CommissionJul 17, 2001
01A04336 (E.E.O.C. Jul. 17, 2001)

01A04336

07-17-2001

David Redd, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, National Institutes of Health (Public Health Service), Agency.


David Redd v. Department of Health and Human Services (National Institutes

of Health)

01A04336

July 17, 2001

.

David Redd,

Complainant,

v.

Tommy G. Thompson,

Secretary,

Department of Health and Human Services,

National Institutes of Health

(Public Health Service),

Agency.

Appeal No. 01A04336

Agency No. OD-EEO-00-0005

OD-EEO-00-0009

DECISION

Complainant filed a timely appeal with this Commission from an Agency's

final decision (FAD) dated May 16, 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 reprisal (prior EEO activity) when:

Allegedly confidential information concerning complainant was illegally

obtained and was given to the EEO office in an effort to retaliate

against the complainant for filing an EEO complaint<1>. (OD-EEO-00-0005)

The confidentiality of a prior settlement agreement<2> was breached

by disclosing information, known to have been expunged from his file,

to a contract investigator conducting an inquiry in the EEO complaint

process. (OD-EEO-00-0009)

The agency dismissed Claim 1 pursuant to 29 C.F.R. � 1614.107(a)(1),

for failure to state a claim under Title VII. The agency dismissed

Claim 2 pursuant to 29 C.F.R. � 1614.107(a)(1) because it duplicated a

claim already decided by the agency. <3>

In Claim 1, the complainant alleged that the supervisor revealed private

and confidential information about him during the EEO process of his

pending complaint.

It is appropriate, and indeed mandatory, for an agency official to give

an accurate and complete statement to an EEO counselor regarding an

act of alleged discrimination. Here, the proponent of the information

was defending claims being alleged by the complainant in the pending

complaint. Such a statement is essential to the integrity of the EEO

process and does not constitute damage to a term, condition or privilege

of employment of the complainant. Such an act does not aggrieve a

complainant so as to give rise to a new complaint. Karen Bowen v. USPS,

EEOC Request No. 05910195 (April 4, 1991). The statements were given

during an EEO investigation. Claim 1 was properly dismissed.

In a complaint dated January 14, 2000, the complainant alleged that the

agency violated the terms of his January 2, 1997 settlement agreement,

when matters in expunged records were referenced in the pending EEO

process. The agency in its March 23, 2000 FAD stated that the complainant

claimed that his former supervisor breached the terms of the agreement.

The agency found that there was no provision or clause in the agreement

that directed the parties not to disclose any information concerning the

matters contained in the agreement. The agency found that the settlement

agreement was not breached. The complainant was advised of his appeal

rights. The complainant did not appeal. Complainant's request to

extend his appeal rights is denied because he waived his appeal rights.

Claim 2 was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)

for raising the same matter that was addressed in the January 14, 2000

complaint, and which was decided in the March 23, 2000 FAD.

Accordingly, the Agency's final decision dismissing complainant's

complaint 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

July 17, 2001

Date

1This complaint is pending at the

agency. (OD-EEO-99-0017)

2Three discrimination complaints filed by complainant were resolved

by a settlement agreement. Complainant's then pending EEOC cases were

dismissed by an Administrative Judge. The records were expunged from

the complainant's Official Personnel Folder. This provision did not

pertain to any EEO files.

3 The Agency consolidated complainant's two reprisal complaints into

a single complaint and issued the FAD herein appealed.