01A03578
12-22-2000
George C. Rogers, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
George C. Rogers v. Department of Agriculture
01A03578
December 22, 2000
.
George C. Rogers,
Complainant,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A03578
Agency No. 000340
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).<1>
Complainant, Chief of Investigations, Hearings, and Appeals, GS-260-14,
claimed that he had been discriminated against on the bases of race and
sex when on November 16, 1999, the agency Employment Adjudication Division
(EAD) Chief met with him and verbally attacked him about complainant's
alleged comment to a secretary. Complainant further claimed that after
leaving the meeting, the EAD Chief continued to yell at him. Finally,
complainant argued that by not properly addressing the November 16,
1999 incident, the EAD Chief's actions are tantamount to the creation
of a hostile work environment.
The agency dismissed the complaint for failure to state a claim.
The Commission finds that the complaint fails to state a claim under 29
C.F.R. Part 1614 because the claim, even if proven to be true, would
not indicate that complainant has been subjected to harassment that
was sufficiently severe or pervasive to alter the conditions of his
employment, as a result of the November 16, 1999 incident. Moreover,
the matters for which complainant sought EEO counseling and that were
raised in the formal complaint do not otherwise challenge an unlawful
employment policy or practice. See Cobb v. Department of the Treasury,
Request No. 05970077 (March 13, 1997).
A review of the record shows that the first time on appeal,
complainant raised a claim concerning the removal of his supervisory
duties. Complainant is advised to contact an EEO Counselor if he wishes
to pursue this matter further.
Finally, the Commission notes that on appeal, complainant claimed that
there was a conflict of interest for the Director, Office of Civil Rights,
to have issued the final decision regarding the instant complaint,
as the matter raised therein relates to purported improprieties by
the EAD Chief. While we agree that the agency should be mindful that
conflicts of position or conflicts of interest, as well as the appearance
of such conflicts should be avoided, we find that in the present case,
the purported conflict of interest does not affect the ultimate outcome,
i.e., the subject complaint fails to state a processable claim.
Accordingly, the agency's final decision dismissing the complaint is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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
December 22, 2000
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.