01A00478
10-03-2000
James W. Deaton v. Department of Agriculture
01A00478
October 3, 2000
James W. Deaton, )
Complainant, )
)
v. ) Appeal No. 01A00478
) Agency Nos. 980732
Daniel R. Glickman, ) 980876
Secretary, ) 980703
Department of Agriculture, ) 980875
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated August 11, 1999, dismissing his complaints of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
In two complaints filed by complainant (Complaint Nos. 970732 and 970876),
complainant alleged that he was subjected to discrimination on the bases
of disability and reprisal when:
from January 4, 1995, through February 17, 1995, complainant was
suspended for insubordination; and
effective January 20, 1996, he was removed from his position with the
agency.
On January 28, 1998, the agency issued a final decision dismissing both
complaints on the grounds that they addressed issues previously appealed
to the Merits Systems Protection Board (MSPB).
On appeal, the Commission found that the agency failed to provide
evidence reflecting that complainant filed an MSPB appeal, vacated
the dismissal, and ordered the agency to supplement the record with
appropriate documentation. Deaton v. Department of Agriculture, EEOC
Appeal No. 01982750 (March 18, 1999). <2>
Thereafter, on August 11, 1999, the agency issued another final decision,
that is the subject of the instant appeal, again dismissing Complaint
Nos. 970732 and 970876 because they addressed matters raised in his
MSPB appeal. The agency also addressed and dismissed two additional
complaints: Complaint No. 980703, filed on May 25, 1998 (concerning
complainant's claim that he was subjected to reprisal discrimination for
assisting an African American employee who was assaulted, which resulted
in restriction of his access to the poultry science facilities) and
Complaint No. 980875, filed on July 23, 1998 (concerning complainant's
claim that EEO reprisal rights were not included in his removal letter
and that protection should be afforded him for whistle blowing).
The agency dismissed Complaint Nos. 980703 and 980705, noting that
complainant previously filed appeals with the MSPB regarding his 1995
suspension and his 1996 removal from the agency. The agency found that
complainant's claim relating to EEO reprisal rights/denial of protection
for whistle blowing, and the purported restricted access to the poultry
science facility were inextricably intertwined with the removal action.
Moreover, the agency determined that the United States Court of Appeals
for the Federal Circuit addressed complainant's claims concerning whistle
blower protection, in a case decided August 21, 1997.
Complaint Nos. 970732 and 970876
EEOC Regulation 29 C.F.R. � 1614.107(a)(4) provides that the agency
shall dismiss a complaint where complainant has raised the matter in a
negotiated grievance procedure that permits allegations of discrimination
or in an appeal to the Merit Systems Protection Board, and 1614.301
or 1614.302 indicates that the complainant has elected to pursue the
non-EEO process.
Upon review of the record, herein, we find that the agency's dismissal
of Complaint Nos. 970732 and 970876 was proper. The record contains
a copy of an Initial Decision issued by the MSPB on April 17, 1995.
The Board's decision indicates that complainant filed an MSPB appeal
on January 5, 1995, regarding his suspension in 1995. The record also
contains a copy of a September 30, 1996 MSPB decision finding that the
agency's removal action was "within the bounds of reasonableness." On
appeal, complainant fails to present persuasive evidence to contradict
the agency's final decision concerning the agency's dismissal of 970732
and 970876. We determine that the agency's August 11, 1999 dismissal
of Complaint Nos. 970732 and 970876 was proper and is AFFIRMED.
Complaint Nos. 980703 and 980875
The Commission determines that complainant's claim that his access was
restricted from the poultry science facilities and his claim that his
removal letter inadequately provided him with reprisal rights and that
protection should be provided to him for whistle blowing, are inextricably
intertwined with the issue of complainant's removal, which was adjudicated
by the MSPB. It is the decision of the Commission therefore, that the
agency's dismissal of Complaint Nos. 980703 and 980875 was proper and
is AFFIRMED for the reasons set forth herein.
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
October 3, 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:
__________________
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.
2The Commission denied complainant's request to reconsider this decision.
Deaton v. Department of Agriculture, EEOC Request No. 05990733 (May 8,
2000).