01995762
09-22-2000
Cameron W. Seay, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Cameron W. Seay v. Department of Transportation
01995762
09-22-00
.
Cameron W. Seay,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01995762
Agency No. 3-99-3057
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from an agency's
decision dated June 10, 1999 dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.<1>
This appeal is accepted in accordance with 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified at 29 C.F.R.
� 1614.405).
BACKGROUND
Complainant had been employed by the agency as a Computer Specialist,
GS-334-11. By letter dated November 25, 1996, complainant was removed
from his position. On December 13, 1996, complainant and the agency
entered into a �Last Chance Agreement� (Agreement). The agency agreed to
cancel the removal action. Complainant made several promises concerning
how he would conduct himself while on the job. He also agreed to withdraw
any of his previously filed complaints. Complainant was subsequently
removed from the agency effective February 14, 1997, purportedly
for violating the Agreement. In Cameron W. Seay v. Rodney E. Slater,
Secretary, Department of Transportation, EEOC Appeal No. 01985073 (July
9, 1999), the Commission affirmed the agency's finding that complainant
failed to show that the agency breached the December 13, 1996 settlement
agreement. After complainant stopped working at the agency, he began
sending hundreds of faxes and e-mails to agency officials charging,
among other things, that agency officials were racist and discussing
his prior EEO complaints. The agency was concerned both by the number
and tone of these e-mails and faxes, and notified the Federal Bureau of
Investigation (FBI) in September of 1998. The FBI concluded that these
correspondences by complainant were not a direct threat, but did contact
complainant to warn him that his behavior could get him in �serious
trouble.� Complainant filed a formal complaint, dated April 6, 1999,
alleging discrimination on the basis of reprisal (prior EEO activity) when
the agency attempted to initiate a criminal complaint against complainant
with the FBI on or about March 10, 1999. Following an investigation of
the matter, the agency issued a final agency decision (FAD) finding that
the complaint failed to state a claim. This appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1))
provides, in relevant part, that an agency shall dismiss a complaint
that fails to state a claim. 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, .106(a). 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. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
Complainant's complaint fails to state a claim because he was not
aggrieved with respect to a term, condition, or privilege of his
employment. See Kim v. Department of the Army, EEOC Request No. 05940875
(April 13, 1995). The action that the agency took in contacting the
FBI was related to actions that complainant took in his capacity as a
private citizen, namely sending numerous e-mails and faxes that appeared
threatening, to the agency. The agency's action was not related to
incidents which occurred during or stemmed from complainant's employment
with the agency.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___09-22-00_______________
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 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.