01993737
11-17-2000
Allen P. Spencer, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Allen P. Spencer, )
Complainant, )
)
v. ) Appeal No. 01993737
) Agency No. 980719
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
____________________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from an agency's
decision (FAD), dated December 18, 1998, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1>
The Commission hereby accepts the appeal in accordance with 29 C.F.R. �
1614.405.
BACKGROUND
Complainant contacted an EEO Counselor on February 5, 1998, and
subsequently filed a formal complaint on March 20, 1998. In his
complaint, complainant alleged that he was subjected to discrimination on
the basis of reprisal (previous EEO activity) when in February of 1998,
he was verbally informed that he was being transferred to work under a
supervisor, who he believed had made a racist comment about him. In its
FAD, among other actions, the agency dismissed this claim for failure
to timely contact an EEO Counselor.<2> This appeal, by complainant,
followed.
ANALYSIS AND FINDINGS
29 C.F.R. � 1614.107(a)(5) provides, in part, that the agency shall
dismiss a complaint that alleges that a proposal to take a personnel
action, or other preliminary step to taking a personnel action, is
discriminatory.
We find that complainant's claim concerning the transfer should be
dismissed because it was a preliminary step to taking a personnel action,
in that the agency told complainant that he was going to be transferred
to another supervisor. The record reveals that when complainant was
actually transferred, he filed a separate complaint contending that
the transfer itself was discriminatory. That complaint is not in front
of us. Although we are dismissing complainant's claim in the instant
case, the agency shall allow complainant to use the information in the
instant case as evidence in the case concerning the actual transfer.
CONCLUSION
The decision of the agency is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
11-17-00
Date Carlton M. Hadden, Director
Office of Federal Operations
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 We note that in its decision, the agency addressed other claims as
part of complainant's complaint, including among other things, a comment
that was made to complainant during a mediation session. Complainant
states affirmatively to us on appeal that �[t]he central issue in [his]
complaint was the impending transfer under an antagonistic supervisor
and the adverse impacts of that transfer...� We will, therefore, only
address the impending transfer in this decision.