01992962
01-04-2001
Michael R. Moore v. Department of Agriculture 01992962 01-04-01 .Michael R. Moore, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Michael R. Moore v. Department of Agriculture
01992962
01-04-01
.Michael R. Moore,
Complainant,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01992962
Agency No. 970106
DECISION
On February 25, 1999, Michael R. Moore (hereinafter referred to as
complainant) initiated an appeal to the Equal Employment Opportunity
Commission (Commission) with regard to his complaint of discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The final agency decision was received by
complainant on January 30, 1999. Accordingly, the appeal is timely, and
is accepted by this Commission in accordance with 29 C.F.R. � 1614.405.
Complainant contacted an EEO Counselor in November 1996, and subsequently
filed a formal complaint, alleging that he had been discriminated
against on the basis of his race (white) when he was reassigned from the
position of Underwriting Services Branch Chief. In its final decision
dated January 7, 1999, the agency dismissed the complaint for failure
to state a claim. It is from this decision that complainant now appeals.
The EEOC Regulations provide for the dismissal of a complaint which
fails to state a claim. 29 C.F.R. � 1614.107(a). An agency shall accept
a complaint from any aggrieved employee or applicant for employment who
believes that he or she has been discriminated against by that agency
because of race, color, religion, sex, national origin, age or disabling
condition. 29 C.F.R.� 1614.103. The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers
a present harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. Riden v. Department of the
Treasury, EEOC Request No. 05970314 (October 2, 1998).
In the case at hand, we find that the matter at issue is not within
the purview of the EEOC Regulations. The record shows that, following
complainant's selection for the position in question in 1992, another
candidate (Black) filed an EEO complaint alleging that the action
was discriminatory. An EEOC Administrative Judge ultimately issued
a decision finding that the co-worker had in fact been subjected to
discrimination. The agency adopted the Administrative Judge's decision,
and retroactively placed the co-worker into the position. The agency's
action was consistent with the EEOC Regulations. Accordingly it is the
decision of the Commission to AFFIRM the final agency 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
___01-04-01_______________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify
that the decision was mailed to claimant, claimant'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.