05971111
09-08-1999
Eric A. Shrader, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Eric A. Shrader v. Department of Agriculture
05971111
September 8, 1999
Eric A. Shrader, )
Appellant, )
) Request No. 05971111
v. ) Appeal No. 01970351
) Agency No. 96-0212
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
________________________________)
DECISION ON REQUEST FOR RECONSIDERATION
INTRODUCTION
On September 29, 1997, Eric A. Shrader (the appellant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Eric A. Shrader v. Daniel R. Glickman,
Secretary, Department of Agriculture, EEOC Appeal No. 01970351
(September 2, 1997). EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
29 C.F.R. �1614.407(a). The party requesting reconsideration must submit
written argument or evidence which tends to establish one or more of
the following three criteria: new and material evidence is available
that was not readily available when the previous decision was issued,
29 C.F.R. �1614.407(c)(1); the previous decision involved an erroneous
interpretation of law, regulation, or material fact, or a misapplication
of established policy, 29 C.F.R. �1614.407(c)(2); and the decision is of
such exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3). For the reasons stated below, appellant's
request is denied; however, the Commission has decided to reconsider
this matter on its own motion.
ISSUE
The issue presented is whether appellant's request for reconsideration
satisfies the requirements of 29 C.F.R. �1614.407(c).
BACKGROUND
On February 12, 1996, appellant filed a formal complaint alleging
discrimination on the basis of reprisal (previous EEO activity)
when on November 29, 1995, during a Dispute Resolution Board (DRB)
proceeding concerning a prior complaint filed by appellant, his manager
made derogatory remarks about him, i.e., that he should search for
employment outside of the agency and that a downgrade was perhaps
in order. According to appellant, his prior complaint concerned his
"[b]eing placed in a position that was unneeded and not commensurate
with his grade of GM-15 ...." An April 5, 1996 memorandum written by
the Chair of the DRB indicated that she:
[t]horoughly reviewed the written record of the fact finding testimony
for that Board, but [found] no reference to the remarks [appellant]
attribute[d] to [his manager], the responding and resolving official for
the agency. Once fact finding is completed, the Board proceeds to the
Resolution Conference, where all settlement discussions are supposed
to be confidential. The Resolution Conference entails the remainder of
the [DRB] and is not transcribed or recorded. Accordingly, the remarks
attributed to [the manager] would have been made during the Resolution
Conference.
According to appellant, his manager's remarks were representative of a
continuing pattern of reprisal and discrimination against him by agency
officials. The agency, however, issued a final decision on September
12, 1996, dismissing appellant's complaint on the grounds that it
failed to state a claim. The agency indicated that parties engaged
in resolution discussions should have latitude in discussing possible
settlement options, without having those discussions be subject to later
scrutiny. Furthermore, the agency noted that there was no evidence
that it subsequently initiated a downgrade of appellant's position,
or took any other adverse action against him. The previous decision
affirmed the agency's dismissal of appellant's complaint.
In his request to reconsider (RTR), appellant argued that the previous
decision erred by focusing on the specific personnel actions that were
threatened and not on his contention that the comments were reflective
of a continuing hostile environment and harassment. In that regard,
appellant submitted, as new evidence, an affidavit from a former EEO
Counselor/Mediator who stated that appellant told him he was experiencing
a hostile work environment due to repeated threats, a pattern of reprisal,
and discrimination.
ANALYSIS AND FINDINGS
In order to merit the reconsideration of a prior Commission decision, the
requesting party must submit written argument or evidence which tends to
establish that at least one of the criteria of 29 C.F.R. �1614.407(c) is
met. The Commission's scope of review on a request for reconsideration is
narrow. Lopez v. Department of the Air Force, EEOC Request No. 05890749
(September 28, 1989). A reconsideration request is not merely a form
of a second appeal. Regensberg v. USPS, EEOC Request No. 05900850
(September 7, 1990). Instead, it is an opportunity to submit newly
discovered evidence, not previously available; to establish substantive
error in a previous decision; or to explain why the previous decision
will have effects beyond the case at hand. Lyke v. USPS, EEOC Request
No. 05900769 (September 27, 1990).
After a careful review of the record, the Commission finds
that appellant's RTR does not meet the regulatory criteria of 29
C.F.R. �1614.407(c). First, we note that the affidavit, from appellant's
former EEO Counselor/Mediator, is not new evidence. The affidavit merely
reflects the fact that appellant, during the informal counseling stage of
the instant complaint, told the counselor that he was being subjected to
a hostile environment and felt that his manager's remarks were part of
a continuing pattern of harassment against him by management officials
dating back to 1993. Assuming that the affidavit was material, we find
that appellant failed to explain why the testimony contained therein
was not readily available at the time the previous decision was issued.
With regard to appellant's specific contention that his manager's remarks
were reflective of a hostile work environment and a continuing pattern
of harassment, a review of his RTR and the aforementioned affidavit,
indicates that he raised the matters that comprise his allegation of
continuing harassment in numerous complaints that were filed against
the agency between 1993 and 1995.<1> Since these matters have already
been decided by the agency or are pending before it, we find that it is
inappropriate to address them here. 29 C.F.R. �1614.107(a).
The Commission, however, has decided to reconsider this matter on
its own motion to clarify the previous decision's analysis.<2> The
Commission has long held that settlement negotiations, including any
statements and proposals made therein, are to be treated as confidential
and privileged in order to facilitate a candid interchange to settle
disputes informally. See Harris v. Department of the Navy, EEOC Request
No. 05941002 (March 23, 1995). To allow a new complaint, based on the
remarks of appellant's manager, would, under the circumstances of this
case, defeat the above stated purpose. Consequently, we affirm the
agency's dismissal of appellant's complaint.
CONCLUSION
After a review of appellant's request to reconsider, the previous
decision and the entire record, the Commission finds that appellant's
request fails to meet the criteria of 29 C.F.R. �1614.407(c), and it is
the decision of the Commission to deny the request. The decision in
EEOC Appeal No. 01970351 (September 2, 1997) remains the Commission's
final decision. There is no further right of administrative appeal from
a decision of the Commission on a request to reconsider.
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
September 8, 1999
Date Frances M. Hart
Executive Officer
1Our records indicate that, including this RTR, appellant has filed
eleven (11) appeals and five (5) requests for reconsideration with the
Commission.
2Notwithstanding the above, we find that the previous decision erred
by affirming the agency's dismissal of appellant's complaint on the
grounds that "[t]here [was] no evidence in the record that appellant
was subsequently removed from his employment at the agency nor [was]
there any evidence in the record that his position at the agency was
downgraded." Appellant, we note, alleged that he was discriminated against
on the basis of reprisal. The Commission has stated that adverse actions
need not qualify as "ultimate employment actions" or materially affect the
terms and conditions of employment in order to state a claim of unlawful
retaliation. EEOC Compliance Manual, No. 915.003, Section 8, page 8-13
(May 20, 1998). Instead, the statutory retaliation clauses prohibit any
adverse action that is based upon a retaliatory motive and is reasonably
likely to deter the employee from engaging in protected activity. Id.; see
also Burns v. USPS, EEOC Request No. 05970791 (July 21, 1999). However,
for the reasons stated herein, we find that appellant's complaint is
properly dismissed for other grounds.