01a45529
02-11-2005
Jim Lucas, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Jim Lucas v. Department of Agriculture
01A45529
February 11, 2005
.
Jim Lucas,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A45529
Agency No. 030412
DECISION
On January 7, 2003, complainant filed a formal EEO complaint (Agency
No. 030377) wherein he claimed that the agency discriminated against
him on the basis of reprisal when: (1) he did not receive a $3,250.00
cash award that was approved by another agency official and denied
by the Administrator of the Farm Service Agency (FSA); and (2) he
did not receive a quality step increase that was initiated by an
official of another agency and was reduced to a $1,000 cash award by
the FSA Administrator. On May 6, 2003, complainant filed a formal
EEO complaint (Agency No. 030412) wherein he claimed that the agency
discriminated against him on the bases of his race (Black), age (over 40)
and in reprisal for his previous EEO activity under Title VII and the
Age Discrimination in Employment Act when: (1) on or about December 17,
2002, the agency's Director of Civil Rights instructed the EEO Counselor
in Agency No. 030377 not to contact the FSA Administrator directly while
conducting pre-complaint counseling; and (2) on January 23, 2004, the FSA
Administrator took actions resulting in the abolishment of the positions
of the National Food and Agriculture Council's (NFAC) Executive Director
and his staff. The complaints were initially consolidated and accepted
for investigation.
By decision dated June 25, 2004, the agency separated the complaints and
dismissed the complaint that was filed on May 6, 2003. Pursuant to 29
C.F.R. � 1614.107(a)(8), the agency dismissed the claim concerning the
FSA Administrator not being contacted during informal EEO counseling.
The agency determined that this claim is tantamount to expressing
dissatisfaction with the manner in which complainant's complaint was
processed. The agency stated that there is no evidence in the record
that would demonstrate that complainant's right to redress through the
EEO process has been violated. The agency noted that dissatisfaction
with the EEO process must be raised within the underlying complaint, not
a new complaint. The agency also noted that complainant is not precluded
from identifying the FSA Administrator as a potential witness during the
further adjudication of the underlying complaint. With regard to the
claim concerning the abolishment of the NFAC Executive Director position
and the positions of his staff, the agency dismissed this claim pursuant
to 29 C.F.R. � 1614.107(a)(1) on the grounds of failure to state a claim.
The agency determined that there is no evidence that complainant has been
harmed with regard to the terms or benefits of his employment. The agency
noted that complainant was not a member of the abolished Council.
Claims alleging dissatisfaction with the processing of a prior complaint
must be dismissed. See EEOC Regulation 29 C.F.R. � 1614.107(a)(8).
A review of the record reveals that the claim concerning not contacting
the FSA Administrator focuses on complainant's dissatisfaction with
the processing of his prior EEO complaint. We therefore find that
the agency properly dismissed this claim pursuant to 29 C.F.R. �
1614.107(a)(8). With regard to the claim concerning the abolishment of
the NFAC Executive Officer position and the positions of his staff, we
find that complainant has not established that this action caused him to
suffer personal harm to a term, condition or privilege of his employment.
We therefore find that the agency properly dismissed this claim pursuant
to 29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's decision to dismiss the complaint is hereby
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 11, 2005
__________________
Date