01A02212
07-06-2000
Anthony Gallo, Complainant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
Anthony Gallo v. Department of Labor
01A02212
July 6, 2000
Anthony Gallo, )
Complainant, )
)
v. ) Appeal No. 01A02212
) Agency No. 9-02-115
Alexis M. Herman, ) 9-02-132
Secretary, )
Department of Labor, )
Agency. )
____________________________________)
DECISION
On January 24, 2000, complainant filed a timely appeal with this
Commission from an agency's decision pertaining to 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.<1> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. �1614.405).
In February and April 1999, complainant contacted the EEO office regarding
claims of discrimination based on reprisal. Informal efforts to resolve
complainant's concerns were unsuccessful. Thereafter, complainant filed
two formal complaints that are the subject of the instant appeal, dated
April 29, 1999 (Complaint No. 9-02-115) and June 9, 1999 ( Complaint
No. 9-02-132). In Complaint No. 9-02-115, , complainant claimed he was
discriminated against when the agency purportedly declined his request
for a meeting to discuss his 1993 settlement agreement. In Complaint
No. 9-02-132, complainant claimed that when the EEO Counselor attempted
to meet with complainant's supervisor, the supervisor told the Counselor
that she was no longer complainant's supervisor.
On December 27, 1999, the agency issued a decision dismissing both
complaints for failure to state a claim. The agency noted that in 1993,
complainant entered a settlement agreement resolving a complaint filed
in 1991. Thereafter, according to the agency, complainant alleged
breach and filed additional complaints. In addition, complainant filed
a civil action in U.S. District Court. The agency indicated that while
the District Court case was pending, complainant requested a meeting
with management to discuss his settlement agreement. The U.S. Attorney
recommended that management not meet with complainant while the case
was pending without counsel for both sides. Subsequently, complainant
filed an EEO complaint (No. 9-02-115) claiming the incident was based on
reprisal. The agency determined that complainant failed to demonstrate
that the alleged incident affected his employment status, noting that
the meeting was eventually held on June 1, 1999. Complainant's claim
that he was discriminated against when his supervisor denied supervising
complainant (No. 9-02-132), was also dismissed for failure to state a
claim. The agency concluded that, even assuming she was his supervisor,
complainant failed to show how he was harmed by the incident.
On appeal, with respect to Case No. 9-02-115, complainant contends
that the agency failed to justify their decision not to hold the
meeting without complainant's attorney. Complainant argues that the
meeting concerned only internal administrative matters, and that the
agency's denial was an effort to increase complainant's legal costs.
According to complainant, the incident constitutes a pattern of reprisal
and harassment. Further, he contends he was harmed when placed in an
assignment far from his "chosen career." Regarding Case No. 9-02-132,
complainant argues that the supervisor's response to the Counselor
illustrates she had no intention of honoring the settlement agreement.
Complainant contends the "pattern of harassment" resulted in his
constructive discharge, an issue he indicates is before the MSPB.
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1))
provides, in relevant part, that an agency shall dismiss a complaint
that fails to state a claim. An agency shall accept a complaint from
any aggrieved employee or applicant for employment who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or disabling condition.
29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. Diaz v. Department of the Air
Force, EEOC Request No. 05931049 (April 21, 1994).
Here, complainant contends that he suffered discrimination based on
reprisal when management failed to meet with him regarding his settlement
agreement until six months after his request (Case No. 9-02-115).
We agree with the agency and find that complainant has failed to show
how the alleged incident resulted in a harm or loss to a term, condition
or privilege of his employment. The record shows that by letter dated
September 29, 1999 the agency provided complainant the opportunity
to show how he was harmed by the alleged incident. After a review of
complainant's response and arguments on appeal, we do not find that the
delayed meeting rendered him an "aggrieved" employee.
Complainant also contends he was discriminated against when his supervisor
told the EEO Counselor that she was not supervising complainant. We note
that on appeal complainant states that "[the supervisor] told the EEO
Counselor she was not my supervisor in the midst of me trying to recapture
the career I had under her supervision." It appears, therefore, that
complainant is in agreement with the supervisor's remark. Nonetheless,
even if the employee was complainant's supervisor, complainant has failed
to show how he was "aggrieved" by the alleged incident. Complainant has
not alleged a harm or loss regarding a term, condition or privilege of
employment for which there is a remedy.
Moreover, we note that on appeal complainant asserts that the incidents
are part of a "pattern of harassment." The Commission finds, however,
that alleged events are not sufficiently severe or pervasive to alter
the conditions of his employment, and therefore fail to state a claim
of discriminatory harassment. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997).
Accordingly, the agency's decision dismissing the complaints for failure
to state a claim was proper and 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).
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:
July 6, 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.