01A30372_r
01-14-2003
Anthony J. Gallo, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Anthony J. Gallo v. Department of Labor
01A30372
January 14, 2003
.
Anthony J. Gallo,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A30372
Agency No. 9-02-012
DECISION
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 its decision, the agency
defined complainant's complaint as claiming that he was discriminated
against on the bases of race (White) and in retaliation for prior EEO
activity when there were continual violations of the EEO complaint process
by the Director of Civil Rights. Specifically, complainant raised the
following matters: an EEO officer's refusal to accept complaints; the
poor quality of the agency's Civil Rights Center (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.
An examination of complainant's complaint, dated September 22, 1998,
reveals that complainant also claimed that he was discriminated against
when the Director of 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.
Therefore, the Commission finds that complainant's complaint is properly
defined as follows: Complainant alleges discrimination based on race
(White) and in retaliation for prior EEO activity when:
The Director of CRC refused to change 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 did not address claim 1, regarding the DLMS 306 accommodation
procedures. In effect, this claim was dismissed by the agency.
The Commission finds that the agency, in failing to address this claim,
improperly dismissed it.
The Commission finds that claim 2, complainant's claim of improper
processing, was properly dismissed for failure to state a claim and for
raising a matter that alleges dissatisfaction with the processing of a
previously filed complaint. See 29 C.F.R. �� 1614.107(a)(1) and (a)(8).
The agency has referred complainant's concerns to the agency official
responsible for the quality of complaint processing, and claims to have
taken the following actions to resolve complainant's complaint:
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 the claim that mail labeled �Confidential� by the CRO was
being opened, the CRO was instructed to direct all correspondence to
complainant's representative's home address, where he was acting in the
capacity of an employee's representative;<1>
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
seven complainants who had similar claims, in order to further address
their concerns.
Regarding the alleged improper processing of the instant complaint,
we find that complainant was not harmed concerning a term, condition,
or privilege of his employment, and that such alleged actions would not
reasonably deter others from pursuing the complaint process. Such a claim
does not state an independent claim of discrimination. Regarding the
alleged improper processing of prior complaints, the Commission finds
that these claims are properly dismissed pursuant to � 1614.107(a)(8).
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 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.
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
January 14, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Complainant's representative has also filed a complaint of discrimination
and retaliation, which includes claims regarding the DLMS 306
accommodation procedures and improper complaint processing by the agency.