01a00337
04-24-2000
Robert M. Peterson, Complainant, v. Aida Alvarez, Administrator, Small Business Administration, Agency.
Robert M. Peterson, )
Complainant, )
)
v. ) Appeal No. 01A00337
) Agency No. 09-99-040
Aida Alvarez, )
Administrator, )
Small Business Administration, )
Agency. )
____________________________________)
DECISION
On September 30, 1999, the agency issued a final decision dismissing the
above entitle matter for failure to state a claim and for raising issued
that have been previously decided by the agency or the Commission. Upon
review, the Commission finds that complainant's complaint is ripe
for dismissal pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(1)).<1> Complainant alleged that he was discriminated
against on the bases of reprisal (prior EEO activity) and disability
(mental) when:
On December 11, 1998, complainant became aware that the SBA forwarded
his email to the U.S. Department of Labor (OWCP), as evidence that
complainant could perform light duty;
The SBA conducted an investigation as to complainant's eligibility to
receive worker's compensation benefits after complainant wrote to his
Congressman;
On December 23, 1998, complainant became aware that the SBE contracted
with the United States Investigative Service to conduct an investigation
of former SBA employees receiving federal worker's compensation benefits
from OWCP without delegation of authority from OWCP;
SBA failed to provide complainant a copy of the findings of the
investigation conducted in claim three despite his request for a copy
of the results;
Complainant's requests for Freedom of Information Act/ Privacy Act
(FOIA) on October 24, 1998, November 4, 8, 21, 24, 29, 30, 1998, and
December 5, 1998 were not received by complainant until December 11,
1998. Furthermore, the SBA did not mail other documents in your FOIA
request until February 11, 1999; and
The SBA requested a second medical opinion to determine if complainant
was eligible to return to work or light duty.
On appeal, no persuasive arguments or evidence have been presented
regarding whether complainant has stated a claim, i.e., to show that
complainant was injured by the incident raised. Accordingly, the agency's
final decision dismissing complainant's complaint is AFFIRMED.<2>
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
April 24, 2000
________________________________
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 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.
2Since the Commission has dismissed the present complainant in its
entirety for failure to state a claim, the Commission will not address
the agency's alternative ground for dismissal.