05A10505_r
10-31-2002
Karl O. Foarile, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Karl O. Foarile v. Department of Labor
05A10505
October 31, 2002
.
Karl O. Foarile,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Request No. 05A10505
Appeal No. 01993374
Agency No. 9-02-009
DECISION ON REQUEST FOR RECONSIDERATION
On April 5, 2001, the Department of Labor (agency) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission
or EEOC) to reconsider the decision in Karl O. Foarile v. Department
of Labor, EEOC Appeal No. 01993374 (March 7, 2001). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. � 1614.405(b). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following two criteria:
the appellate decision involved a clearly erroneous interpretation of
material fact or law; or, the decision will have a substantial impact
on the policies, practices or operations of the agency. Id. In its
request for reconsideration of the decision issued by the Commission in
Appeal No. 01993374, the agency asserted that the Commission's decision
involved a clearly erroneous interpretation of material fact.
In the Commission's decision in Appeal No. 01993374, we remanded
complainant's complaint to the agency for further processing, based
on the assumption that the claims of seven other individuals who
complainant attempted to join as complainants in his complaint, had
not been adjudicated by the agency. With the agency's request for
reconsideration, the agency submitted documentation indicating that
the complaints of the seven other complainants had been processed by
the agency prior to the issuance of the decision by the Commission in
Appeal No. 01993374. The record shows that the agency did provide EEO
Counseling for the seven other individuals who complainant wished to
join in his complaint, and that the agency dismissed those complaints,
unbeknownst to the Commission. Complainant's appeal, as well as the
other seven appeals, were filed on March 19, 1999, by complainant, who
was acting as the other complainants' representative. The Commission
has created the following docket numbers to correspond to the
seven appeals, and will consider each appeal separately: Appeal No.
01A30366, Appeal No. 01A30367, Appeal No. 01A30368, Appeal No. 01A30369,
Appeal No. 01A30370, Appeal No. 01A30371, and Appeal No. 01A30372.
Although we are denying the agency's request to reconsider our decision
on Appeal No. 01993374, we find that the Order in our decision on Appeal
No. 01993374, requiring the agency to provide EEO Counseling to the
seven other complainants, to allow the individuals to re-file their
individual complaints, to issue notices that the agency will process
their EEO matters, and to consolidate the complaints, no longer needs
to be implemented, as the agency previously took the actions directed.
The appeals of these seven additional complainants will be processed
separately by the Commission. Accordingly, it is now appropriate to
consider the propriety of the final decision regarding complainant's
complaint, issued by the agency on February 12, 1999.
Upon review, we find that the agency properly dismissed complainant's
complaint in its February 12, 1999 final decision, in part, and improperly
dismissed complainant's complaint, in part. In his complaint, dated
September 22, 1998, complainant claimed that he was discriminated against
on the bases of race (White), disability (unspecified), and in retaliation
for prior EEO activity when:
The Director of the agency's Civil Rights Center (CRC) refused to
change Department of Labor Management System (DLMS) 306 accommodation
procedures to conform with requirements of the March 25, 1997 EEOC
Enforcement Guidance on the Americans with Disabilities Act and
Psychiatric Disabilities; and
Complainant's complaint was improperly processed. Specifically,
complainant raised the following matters: an EEO officer's biased
handling of the complaint process, including refusal to accept
complaints; the poor quality of CRC investigations, including
deficient efforts to interview complainant's witnesses and to document
complainant's position; and, CRC's failure to discourage reprisal
by management.
The agency dismissed claim 1 for stating the same claim that is
pending before the agency, pursuant to 29 C.F.R. � 1614.107(a)(1).
In its decision, the agency claims that complainant raised the issue
of the DLMS accommodation procedures in several prior complaints, and
that he raised this particular issue with the EEO investigator in a
September 16, 1998 electronic mail message (e-mail) �amendment to [his]
affidavit on reasonable accommodation in complaints that are currently
under investigation� by the agency.
The Commission has determined that neither the prior complaint contained
in the record, dated March 21, 1998, nor the multiple e-mails contained
in the file, indicate that complainant has previously raised this issue
either with the agency or the Commission. The Commission notes that
the September 16, 1998 e-mail, and the complaints identified by
the agency as stating the same claim that is raised in the instant
complaint, are not contained in the record that has been submitted to
the Commission. Therefore, we find that claim 1 was improperly dismissed
by the agency.
At this time, however, we find that claim 2, complainant's claim of
improper processing, was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(1). Claim 2 fails to state a claim because as a result,
complainant did not suffer a personal loss or harm to a term, condition,
or privilege of his employment. The agency has referred complainant's
concerns to the agency official responsible for the quality of complaint
processing. The agency claims to have resolved all matters pertaining to
the processing of complainant's complaint by taking the following actions:
The Civil Rights Officer (CRO) changed the voice mail message on the
telephone, which now instructs employees seeking counseling to call the
National Coordinator of Counselors if the CRO is unavailable;
Based on complainant's claim that mail labeled �Confidential� by the CRO
was being opened, the CRO was instructed to direct all correspondence to
complainant's home address where complainant was acting as an employee's
representative;
The CRO was instructed to accept all informal complaints for counseling;
and
The CRC's Director has offered to meet with complainant, as well as the
seven complainants that complainant wished to join in his complaint,
in order to further address their concerns.
Should complainant elect to have a hearing before an EEOC Administrative
Judge (AJ) regarding the remanded claim, claim 1, complainant may raise
his concerns regarding the improper processing of the instant complaint
at the hearing, or, complainant may raise the issue with the EEOC Office
of Federal Operations on appeal, if complainant ultimately elects to
appeal the decision of the agency when the merits of his complaint
are addressed.
The agency's request for reconsideration is DENIED, but the Order is
MODIFIED. The agency's final decision dismissing claim 1 is REVERSED.
Claim 1 is hereby REMANDED for further processing in accordance with the
Order below. The agency's final decision dismissing claim 2 is AFFIRMED.
As this is the first time the merits of the agency's dismissal of
complainant's complaint have been addressed, both parties have the right
to request reconsideration of the determination regarding that dismissal
rendered herein.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
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.
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 (K0501)
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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 31, 2002
__________________
Date