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.