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.