Frank G. Sanders, Complainant,v.Richard W. Riley, Secretary, Department of Education, Agency.

Equal Employment Opportunity CommissionOct 13, 2000
05990744 (E.E.O.C. Oct. 13, 2000)

05990744

10-13-2000

Frank G. Sanders, Complainant, v. Richard W. Riley, Secretary, Department of Education, Agency.


Frank G. Sanders v. Department of Education

05990744

October 13, 2000

.

Frank G. Sanders,

Complainant,

v.

Richard W. Riley,

Secretary,

Department of Education,

Agency.

Request No. 05990744

Appeal No. 01985645

Agency No. ED-9826020

DECISION ON REQUEST FOR RECONSIDERATION

On May 24, 1999, Frank G. Sanders (complainant) timely initiated a

request to the Equal Employment Opportunity Commission (the Commission)

to reconsider the decision in Frank G. Sanders v. Department of Education,

EEOC Appeal No. 01985645 (May 12, 1999).<1>

EEOC Regulations provide that the Commission may, in its discretion, grant

a party's request to reconsider a decision issued under the regulation

set forth at 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified as 29

C.F.R. �1614.405(b)), if the party demonstrates that:

the appellate decision involved a clearly erroneous interpretation of

material fact or law; or

The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405(b)).

The record indicates that complainant filed a complaint alleging that he

was subjected to discrimination on the bases of race, sex, age, and in

reprisal for prior EEO activity when (1) in July 1997, he was not selected

for a position as a Supervisory Equal Opportunity Specialist, GS-360-13;

(2) in August 1997, he was not selected for two Non-Supervisory Equal

Opportunity Specialist, GS-360-13 positions; (3) in August 1997, he was

not selected for a position as a Special Assistant, GS-301-13; and (4)

in August 1997, an agency official threatened to terminate employees

who filed discrimination complaints. In the previous decision, the

Commission affirmed the agency's June 12, 1999 decision dismissing

complainant's claim that he had been subjected to unlawful employment

discrimination when in August 1997, an agency official threatened to

terminate employees who had lied on applications for vacant agency

positions, and in turn filed EEO complaints when they were not selected

for the positions. Complainant asserted that because he had already

filed an EEO complaint based on a non-selection, he felt threatened by

the official's remarks. The agency determined that complainant failed

to state a claim. Specifically, the agency found that complainant did

not suffer a personal harm as a result of the remarks made by the agency

official regarding filing EEO complaints.

In complainant's request to reconsider, complainant argues that the

previous Commission decision involved an erroneous interpretation of law.

The Commission finds that complainant's request to reconsider meets the

criterion of 29 C.F.R. � 1614.405(b)(1). It is therefore the decision of

the Commission to grant the request. The previous decision found that

complainant did not state a claim because the agency official's remarks

did not render complainant an aggrieved employee within the meaning of

Part 1614 of the EEOC Regulations. The Commission has held that:

The agency has a continuing duty to promote the full realization of

equal employment opportunity in its policies and practices. This duty

extends to every aspect of agency personnel policy and practice in the

employment, advancement, and treatment of employees. Agencies shall,

among other things, insure that managers and supervisors perform in

such a manner as to effectuate continuing affirmative application and

vigorous enforcement of the policy of equal employment opportunity.

Crespo v. USPS, EEOC Request No. 05920842 (September 17, 1993).

In the instant case, an agency official, rather than encouraging the

realization of equal opportunity in the workplace, purportedly created

a chilling effect upon complainant's efforts to avail himself of the

opportunity to pursue the EEO complaint process. The Commission has

stated that adverse actions need not qualify as �ultimate employment

actions� or materially affect the terms and conditions of employment to

constitute retaliation. EEOC Compliance Manual Section 8, �Retaliation;�

No. 915.003 (May 20, 1998). Instead, the statutory retaliation clauses

prohibit any adverse treatment that is based upon a retaliatory motive

and is reasonably likely to deter the charging party or others from

engaging in protected activity. Id. In the present case, clearly the

agency official's threat could reasonably deter the employees present,

including complainant, from engaging in protected EEO activity. See

Torrez v. Social Security Administration, EEOC Request No. 05950947 (March

10, 1998); Carroll v. Department of the Army, EEOC Request No. 05970939

(April 4, 2000); Lok v. Department of Justice, EEOC Appeal No. 01A01651

(June 7, 2000). Consequently, we find that complainant's claim regarding

the August 1997 threat by the agency official states a processable claim.

After a review of complainant's request for reconsideration, the

previous decision, and the entire record, the Commission finds that

complainant's request meets the criteria of 29 C.F.R. � 1614.405(b), and

it is the decision of the Commission to GRANT the complainant's request.

The decision of the Commission in Appeal No. 01985645 and the final

agency decision is REVERSED. Complainant's claim of discrimination

regarding the August 1997 threat of the agency official is REMANDED for

further processing. There is no further right of administrative appeal

on the decision of the Commission on a Request to Reconsider.

ORDER

The agency is ORDERED to process the remanded claim in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to the

complainant that it has received the remanded claim within thirty (30)

calendar days of the date this decision becomes final. The agency shall

issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request. The agency shall consolidate the processing of complainant's

claim on the basis of retaliation with the processing of his other

discrimination claims previously accepted by the agency.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

Compliance with the Commission's corrective action is mandatory. The

agency shall submit its compliance report within thirty (30) calendar

days of the completion of all ordered corrective action. The report shall

be submitted to the Compliance Officer, Office of Federal Operations,

Equal Employment Opportunity Commission, P.O. Box 19848, Washington,

D.C. 20036. The agency's report must contain supporting documentation,

and the agency must send a copy of all submissions to the complainant. If

the agency does not comply with the Commission's order, the complainant

may petition the Commission for enforcement of the order. 29 C.F.R. �

1614.503(a). The complainant also has the right to file a civil action

to enforce compliance with the Commission's order prior to or following

an administrative petition for enforcement. See 64 Fed. Reg. 37,644,

37,659-60 (1999) (to be codified and hereinafter referred to as 29

C.F.R. �� 1614.407, 1614.408) and 29 C.F.R. � 1614.503(g). Alternatively,

the complainant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for

enforcement or a civil action on the underlying complaint is subject

to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If

the complainant files a civil action, the administrative processing

of the complaint, including any petition for enforcement, will be

terminated. See 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and

hereinafter referred to as 29 C.F.R. � 1614.409).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

This is a decision requiring the agency to continue its administrative

processing of your complaint. However, if you wish to file a civil

action, you have the right to file such action in an appropriate United

States District Court WITHIN NINETY (90) CALENDAR DAYS from the date

that you receive this decision. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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:

___________________________

Frances M. Hart

Executive Officer

Executive Secretariat

October 13, 2000

____________________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

____________________________

Equal Opportunity Assistant

_____________

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.