Randall L. Thurman, Complainant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionMay 22, 2000
01985817 (E.E.O.C. May. 22, 2000)

01985817

05-22-2000

Randall L. Thurman, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.


Randall L. Thurman v. Department of Agriculture

01985817

May 22, 2000

Randall L. Thurman, )

Complainant, )

) Appeal No. 01985817

v. ) Agency No. 931004

)

Daniel R. Glickman, )

Secretary, )

Department of Agriculture, )

Agency. )

)

)

DECISION

INTRODUCTION

Randall L. Thurman (complainant) timely filed an appeal on July 20,

1998, with the Equal Employment Opportunity Commission (the Commission)

from a final agency decision (FAD), sent to complainant on June 25, 1998,

concerning a claim 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.<1> The Commission hereby accepts the appeal in accordance with

64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405.

ISSUE PRESENTED

Whether the agency correctly dismissed two of complainant's claims

because they were also contained in his civil action.

BACKGROUND

Complainant had been employed by the agency as a County Supervisor.

He filed a formal complaint on September 29, 1993, claiming discrimination

on the basis of race (White) when: 1) an investigator for the Office of

Advocacy and Enterprise improperly processed a Title VI investigation

concerning agency office operations; 2) on April 12, 1993, complainant

was detailed based on the findings of investigations into agency office

operations; and 3) on June 17, 1993, complainant was subjected to

discourteous behavior by the investigator's supervisor while attempting

to obtain information regarding the findings of the investigations into

agency office operations. The Administrative Judge (AJ) assigned by the

Commission determined that the case evidence did not warrant a hearing

because there was no genuine issue of material fact in dispute. The AJ

issued Findings and Conclusions dismissing claims (1) and (2) because the

matters were addressed in complainant's Civil Action No. 94-1679 (United

States District Court, Western District of Louisiana, Monroe Division),

and recommending a finding of no discrimination with respect to claim

(3). The agency's FAD adopted the AJ's recommended decision as its final

decision. This appeal followed. Since complainant specified that he was

only appealing the dismissal of claims (1) and (2), this decision will not

address the AJ's finding of no discrimination with respect to claim (3).

ANALYSIS AND FINDINGS

The Commission's regulations allow an AJ to issue a decision without a

hearing when he or she finds that there is no genuine issue of material

fact. This regulation is patterned after the summary judgment procedure

set forth in Rule 56 of the Federal Rules of Civil Procedure. The United

States Supreme Court has stated that summary judgment is appropriate

where the trier of fact determines that, given applicable substantive

law, no genuine issue of material fact exists. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is "genuine" if the

evidence is such that a reasonable fact-finder could find in favor of the

non-moving party. Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st

Cir. 1988). In the context of an administrative proceeding under Title

VII, summary judgment is appropriate if, after adequate investigation,

complainant has failed to establish the essential elements of his or

her case. Spangle v. Valley Forge Sewer Authority, 839 F.2d 171, 173

(3d Cir. 1988). In determining whether to grant summary judgment,

the trier of fact's function is not to weigh the evidence and render a

determination as to the truth of the matter, but only to determine whether

there exists a genuine factual dispute. Anderson, 477 U.S. at 248-49.

Based on our careful de novo review of the entire record before us,

the Commission finds that the AJ's recommended findings and conclusions

properly summarized the relevant facts and referenced the appropriate

regulations, policies, and laws. We conclude that complainant raised the

same issues in his civil action as are contained in claims (1) and (2)

of his complaint, and that the AJ's dismissal of those claims was proper.

Accordingly, we discern no basis to disturb the AJ's recommended findings

and conclusions or the agency's adoption of the AJ's decision.

CONCLUSION

The decision of the agency is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

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

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (S1199)

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:

05-22-00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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

1 On 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.