Theodore S. Smith, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionJan 3, 2001
01996859 (E.E.O.C. Jan. 3, 2001)

01996859

01-03-2001

Theodore S. Smith, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Theodore S. Smith v. Department of Agriculture

01996859

January 3, 2001

.

Theodore S. Smith,

Complainant,

v.

Daniel R. Glickman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01996859

Agency No. 980861

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) and 29 C.F.R. �

1614.107(a)(2).<1>

In a complaint dated July 28, 1998, complainant claimed that he

was discriminated against on the bases of race and reprisal when his

supervisor did not pick up his length-in-service award at an April 13,

1998 ceremony and bring the award back to him. Complainant also claimed

that a management official did not acknowledge his presence while riding

in the elevator on April 17, 1998; and that the agency failed to address

informal complaint issues.<2> The agency dismissed these matters for

failure to state a claim.

The agency dismissed another claim raised in the complaint (refusal

to allow complainant access to an Early Intervention Program in April

1998) on the grounds that it was not brought to the attention of the EEO

Counselor and is not like or related to a matter for which complainant

underwent counseling.

The Commission finds that the matters relating to picking up an award;

failure to acknowledge his presence in an elevator; and failure to address

informal complaint issues, fail to state a claim under 29 C.F.R. Part

1614 because the claims, even if proven to be true, would not indicate

that complainant has been subjected to harassment that was sufficiently

severe or pervasive to alter the conditions of his employment. Moreover,

the claims do not otherwise challenge an unlawful employment policy or

practice. See Cobb v. Department of the Treasury, Request No. 05970077

(March 13, 1997). Accordingly, the agency's final decision to dismiss the

three claims referenced above for failure to state a claim is AFFIRMED.

Moreover, the Commission determines that the claim relating to denied

access to an Early Intervention Program was not addressed during EEO

counseling. The record also reflects that this matter is not like

or related to matters for which complainant underwent EEO counseling.

Accordingly, the agency's decision to dismiss this claim was proper and

is AFFIRMED.

Finally, the Commission notes that in his formal complaint, complainant

stated that the agency failed to comply with one provision of a settlement

agreement that he had entered approximately one year prior to the filing

of the instant complaint. In its final decision, the agency stated that

this claim is being processed as a separate matter and that it has been

assigned Complaint Number 990762. The Commission therefore will not

address this matter in this decision.

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

January 3, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2It appears from complainant's complaint that this matter relates to an

agency official's purported refusal to discuss complainant's underlying

concerns regarding reprisal and racism, during attempted mediation of

the instant complaint.