Eric A. Shrader, Appellant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionSep 8, 1999
05971111 (E.E.O.C. Sep. 8, 1999)

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.