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.