Cameron W. Seay, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionSep 22, 2000
01995762 (E.E.O.C. Sep. 22, 2000)

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.