01A03899
03-17-2003
Allen P. Spencer, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Allen P. Spencer v. Department of Agriculture
01A03899
03-17-03
.
Allen P. Spencer,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A03899
Agency No. 911103, 920919, 940106, 940523, 940923, 970808
Hearing Nos. 370-98-X2561, X2562, X2563, X2564, X2565 and 370-99-X2009
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant alleged that the agency had discriminated against him on the
bases of race (African-American), color (Brown), age (D.O.B. 5/21/38),
and reprisal for prior EEO activity when:
(1) in Complaint No. 911103, (1) he was moved from a private office into
an open bay area; (2) the Administrative Officer delayed performance
awards for his subordinates; and (3) he was issued a performance
appraisal for fiscal year 1991 of fully successful;
in Complaint No. 920919, (4) he was charged with absence without leave
by the Land Management Planning (LMP) Officer; (5) the Fire Management
Officer wrote comments on a letter; (6) the Forest Geologist removed
equipment without his authorization; and (7) there were delays in
auditing and filling positions on his staff;
in Complaint No. 940106, (8) he was removed from a temporary promotion
as LMP Officer and was prohibited from entering the personnel management
portion of the building; and (9) he was suspended without pay for ten
(10) days;
in Complaint No. 940523, (10) he was not promoted noncompetitively to
GS-12; (11) the agency failed to consider the impact on him of promoting
other employees noncompetitively to GS-12; (12) the agency allegedly
assigned grade-controlling duties to other employees, resulting in their
promotions to GS-12; (13) the agency failed to utilize his skills fully;
(14) the agency delayed an audit of his position; and (15) the agency
withheld classification and funding of a GS-12 Group Leader position;
in Complaint No. 940923, (16) he was issued a letter prohibiting him
from entering the personnel management portion of the building; and
in Complaint No. 970808, (17) his competitive temporary promotion to
GS-12 was untimely and was not converted to a permanent GS-12 position.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to affirm the agency's final
order because the Administrative Judge's ultimate finding, that
unlawful employment discrimination was not proven by a preponderance
of the evidence, is supported by the record. We also find that the
Administrative Judge's issuance of a decision without a hearing, for
part of the record, was appropriate and a preponderance of the record
evidence does not establish that discrimination occurred.
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
____03-17-03______________
Date