05A40238
04-22-2004
Richard N. Morris, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Richard N. Morris v. Department of Agriculture
05A40238
April 22, 2004
.
Richard N. Morris,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Request No. 05A40238
Appeal No. 01A34259
Agency No. USDA #000815
Hearing No. 260-A2-8056X
DECISION ON REQUEST FOR RECONSIDERATION
On December 8, 2003, the Equal Employment Opportunity Commission
(the Commission or EEOC), on its own initiative, docketed a request to
reconsider the decision in Richard N. Morris v. Department of Agriculture,
EEOC Appeal No. 01A34259 (October 6, 2003). EEOC regulations provide
that the Commissioners may, in their discretion, reconsider any
previous Commission decision. 29 C.F.R. � 1614.405(b). The Commission
reconsiders the previous decision because it involved a clearly erroneous
interpretation of material fact or law. Id.
The complainant filed an EEO complaint claiming that he was discriminated
against based on disability (stress) in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. when in August 1999 and again in April 2000 he
was not selected for the position of Engineering Equipment Operator.
Following an investigation, the complainant requested a hearing. An EEOC
Administrative Judge (AJ) issued a decision without a hearing finding
no discrimination. On June 19, 2002, the agency issued a final action
implementing the AJ's decision. The complainant received the decision
on June 29, 2002.
The previous decision dismissed the complainant's appeal on the grounds
that it was untimely filed. It reasoned that the complainant filed his
appeal on July 9, 2003, long after the 30 calendar day time limit to
file an appeal after receipt of an agency's final action. 29 C.F.R. �
1614.402(a).
Thereafter, new information was uncovered showing that the complainant
actually filed his appeal on July 24, 2002, within the 30 day calendar
limit, not July 9, 2003. Accordingly, the Commission reverses its
previous decision and finds that the complainant timely filed his appeal.
We now turn to the merits of the complainant's claim. The AJ found that
the complainant's stress condition did not constitute a disability.
Specifically, after the complainant learned that his daughter was
pregnant, he got drunk, threatened to kill himself, and was hospitalized
for five days in 1998 or 1999. The complainant related that afterwards,
he saw someone for seven meetings which helped a lot, and joined a
church, which also helped a lot. The only lingering affect he mentioned
was occasionally taking an unidentified nerve pill when he had to do
something that made him nervous. The AJ found that the complainant
did not have a disability because his impairment was not substantial.
The AJ noted its short duration and that transitory illnesses are
generally not considered to be disabilities.
In finding no discrimination, the AJ also reasoned that the agency's
explanation for choosing the selectees, i.e., they were also qualified,
and were chosen because they had veterans' preference, was a legitimate,
nondiscriminatory reason for the actions at issue, and the complainant
failed to raise an inference of discrimination or show that this reason
was not believable. One agency personnel officer affirmed that under
the program which the positions at issue were announced, candidates who
make it to the �quality group� level and are veterans have preference
over non-veterans. The complainant and the selectees were in the �quality
group.� A personnel management specialist affirmed that the law required
that qualified candidates who are veterans get preference and be offered
the position before any non-veteran candidates. As found by the AJ,
there were no genuine issues of material fact in dispute.
The complainant claimed that others hired for like permanent positions
were not veterans. He specifically identified two people. According to
the complainant, one was hired in about 1993. While the personnel
officer did not recall this individual, he stated there may have
been no quality group veteran candidates for that job. The personnel
officer explained that the second individual was hired pursuant to an
EEO complaint.
Even if the Commission were to assume that the complainant is an
individual with a disability, complainant did not show that the agency's
reason for its actions was a pretext for discrimination. After a review
of the record in its entirety, including consideration of all statements
submitted on the appeal and reconsideration stages, it is the decision of
the EEOC to affirm the agency's final order, because the AJ's issuance
of a decision without a hearing was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.<1>
STATEMENT OF RIGHTS - ON APPEAL<2>
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:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
April 22, 2004
__________________
Date
1At the reconsideration stage the complainant, for the first time,
claimed not being hired was also due to his age (born 1946) in violation
of the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. The record, however, reflects that he was not
chosen because other highly qualified candidates had veterans preference.
2While this decision is at the reconsideration level, the parties have
a right to request reconsideration because this is the first decision
where the Commission ruled on the merits of the complainant's claim.