01994750_r
06-21-2001
Robert M. Peterson, Complainant, v. John Whitmore, Acting Administrator, Small Business Administration, Agency.
Robert M. Peterson v. Small Business Administration
01994750
June 21, 2001
.
Robert M. Peterson,
Complainant,
v.
John Whitmore,
Acting Administrator,
Small Business Administration,
Agency.
Appeal No. 01994750
Agency No. 02-99-014
DECISION
Upon review, the Commission finds that the agency properly dismissed
complainant's complaint. In his complaint complainant claimed that
he was discriminated against on the bases of disability (hypertension,
spastic colitis and depression) and was retaliated against when:
On December 11, 1998, complainant became aware that the agency
had forwarded his December 7, 1998 electronic mail message to the
U.S. Department of Labor (OWCP), as evidence that complainant could
perform light duty work;
The agency conducted an investigation into complainant's continued
eligibility to receive workers' compensation benefits after complainant
sent a letter to his Congressman in which complainant offered to
share his experiences regarding the U.S. Department of Labor's (OWCP)
administration of the Federal Employees Compensation Act;
On December 23, 1998, complainant discovered that the agency contracted
with the United States Investigative Service to conduct an investigation
of former agency employees receiving federal workers' compensation
benefits without delegation of authority from OWCP; and
The agency requested a second medical opinion to determine if complainant
was eligible to return to work or light duty.
Although claim 4 was asserted by complainant in his complaint, the
agency did not consider this claim when issuing its May 5, 1999 decision.
Claims 1, 2, 3, and 4 are considered by the Commission on appeal.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency will dismiss a complaint that states the same claim that is
pending before or has been decided by the agency or Commission. All of
complainant's claims in the instant case have already been decided by
the Commission in Robert M. Peterson v. Small Business Administration,
EEOC Appeal No. 01A00337 (April 24, 2000). Since we are affirming the
agency's dismissal of complainant's complaint on the ground that it states
the same claim that has already been decided by the Commission, we will
not address the agency's ground for dismissal, i.e., that complainant
fails to state a claim.
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
June 21, 2001
__________________
Date