01a42004
07-22-2005
Anthony J. Gallo, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Anthony J. Gallo v. Department of Labor
01A42004
July 22, 2005
.
Anthony J. Gallo,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A42004
Agency Nos. 07-02-025
8-02-096; 00-02-073;
00-02-092; 02-02-045;
01-02-122; 9-02-012
Hearing Nos. 160-98-8497X
100-2003-08413X
DECISION
Complainant timely initiated an appeal from the agency's final
action concerning seven consolidated complaints of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant was employed as a Manpower Development Specialist, GS-12,
at the agency's Job Training Partnership Act (JTCPA) in New York,
New York.<1> Complainant filed seven formal complaints in May 1995;
April 10, 1998; September 1998; April 14, 2000; May 15, 2000; May 31,
2000; and September 12, 2001, respectively. Therein, complainant claimed
that he was discriminated against on the bases of race (Caucasian), sex
(male), disability (depression), and in reprisal for prior EEO activity.
Complainant's complaints were comprised of the following claims:<2>
(1) at the end of February or beginning of March 1995, the Certifying
Officer of the Alien Certification Unit (ACU) held a re-invention meeting
with two other members of the re-engineering team without complainant,
although he had been selected as a member of the team (Complaint 1,
Agency No. 7-02-025);
(2) his Office of Workers' Compensation (OWCP) claim, remanded by the
Branch Hearings and Review on April 18, 1997, was not timely processed
by OWCP, Kansas City (Complaint 2, Agency No. 8-02-096);
(3) his application for unemployment insurance benefits was denied
by the New York State Department of Labor because of false information
provided by the agency (Complaint 3, Agency No. 00-02-073);
(4) on March 21, 2000, his request for a reasonable accommodation was
denied after three years (Complaint 4, Agency No. 00-02-092);
(5) on May 15, 2000, the agency made false and misleading statements
resulting in the denial of his Office of Workers' Compensation Program
(OWCP) claim (Complaint 4, Agency No. 00-02-092);
(6) he retired under an "early out" authority, effective September 3,
1999 (Complaint 5, Agency No. 02-02-45);
(7) the agency refused to give him an employment reference when a
potential employer called after his retirement (Complaint 6, Agency
No. 01-02-122); and
(8) the Director of Civil Rights Center (CRC) refused to change the
agency's 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 (Complaint 7,
Agency No. 9-02-012).
At the conclusion of the investigation, complainant received a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On June 23, 2000, the AJ issued an order
consolidating the complaints for hearing. The agency thereafter filed
a motion for summary judgment or in the alternative, a Respondent's
Response to Order and Motion to Dismiss Complaints Without Hearing.
Agency Motion to Dismiss
In its motion, the agency argued for the AJ to dismiss several claims on
procedural grounds and to issue a decision without a hearing, finding
no discrimination. Regarding claim (1), the agency argued that the AJ
dismiss this claim pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to
state a claim, finding that complainant was not aggrieved and suffered
no harm. Specifically, the agency argued that the record reflects that
during the relevant time period, complainant was detailed outside of
the ACU.
Regarding claim (2), the agency urged the AJ to dismiss this claim
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim by
determining that it constituted a collateral attack on the OWCP process.
Regarding claim (3), the agency urged the AJ to dismiss this claim
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim,
finding it to be a collateral attack on the unemployment insurance
benefits process.
Regarding claim (4), the agency argued that this claim should be dismissed
pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds of untimely EEO
Counselor contact. The agency specifically argues that complainant did
not file an informal complaint until March 29, 2000, and did not file a
formal complaint until April 14, 2000, due to the untimely filing of the
formal complaint. The agency further argued that these dates are beyond
the 45-day time limitation period, and that complainant had, or should
have had, a reasonable suspicion of unlawful employment discrimination
following the rejection of a reasonable accommodation request in 1996.
The agency also requested dismissal of claim (4) on the alternative
grounds of failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1), finding that complainant was not aggrieved. Specifically,
the agency argued that complainant was not employed by the agency for
over six months prior to filing the instant complaint, and therefore
suffered no harm.
Furthermore, the agency argued that complainant was not entitled to a
reasonable accommodation because he was not a qualified individual with
a disability within the meaning of the Rehabilitation Act. The agency
further argued that while complainant had a mental impairment, there was
no record that complainant's depression substantially limited any of his
major life activities. The agency argued that management attempted to
accommodate complainant several times although it was not required to
do so.
Regarding claim (5), the agency argued that in a prior final decision,
it dismissed this claim pursuant to 29 C.F.R. � 1614.107(a)(1), for
failure to state a claim, finding that it was a collateral attack on
the OWCP process.<3>
Regarding claim (6), the agency stated that assuming arguendo that
complainant had evidence that the agency had intended to force him to
retire, he would nevertheless still have to show that the conditions
where he worked were such that a reasonable employee in his situation
would have been compelled to retire. The agency argued, however, that
the RA stated that in July 1999, complainant informed her that because a
mediation meeting was unsuccessful, he was considering retirement because
he believed there was no chance for him to return to ACU. The RA further
stated that she informed complainant that she was sorry he was choosing
retirement; and that she informed him that a named JPTA Supervisor was
very pleased with complainant's work. The RA stated that complainant
"again told me his heart was not in the JPTA work and he derived the
most satisfaction from working in alien certification." The RA stated
that complainant informed her that he might file a constructive discharge
claim because he could not work in the ACU. The RA further stated that
she informed complainant "that would not work because assignments in
this office are management prerogative, and just because he could not
work in the unit he wanted was not a basis for constructive discharge."
The RA stated that complainant then requested to take some time off on
leave before he retired, she approved his request.
Regarding claim (7), the agency argued that management's actions
regarding this claim were motivated by confusion, and were not based on
complainant's prior protected activity. Specifically, the agency argued
that the RA stated that before complainant's retirement, complainant
requested a letter of reference, which the RA agreed to provide. The RA
further stated that following complainant's September 3, 1999 retirement,
she had not heard "anything further about [Complainant's] job search
for almost two (2) years." The RA stated that during the relevant
time period, she worked with an agency attorney in the preparation of
the agency's defense to complainant's appeal before the Merits System
Protected Board (MSPB) "in which he alleged that his retirement was
actually a constructive discharge." The RA stated that during that
time, complainant or his representative attempted on several occasions
to contact the RA, as well as other agency management officials, in an
effort to seek discovery relating to the MSPB appeal. The RA stated
that complainant and his representative made these attempts despite
having been informed by the agency attorney that all discovery requests
were to be directed to him. The RA stated that in order to assure there
would be no improprieties, she instructed her staff to refer any calls
from or related to complainant to the attorney in her absence. The RA
stated that in June 2001, while she was away from her office for a week,
her office received a telephone call from an individual who identified
herself as being from a law firm seeking to speak to someone concerning
complainant. The RA stated that given that complainant's MSPB appeal
case was still pending, and the RA was absent from the office, her staff
properly referred the caller to the agency attorney, anticipating that
the caller might be counsel whom complainant had retained to handle his
MSPB appeal. The RA stated that the attorney spoke with the caller,
and determined that she was not calling in reference to complainant's
MSPB appeal, but "rather was seeking a reference about him and he
referred the caller back to my office." The RA stated "I am informed
by [Attorney] that at no time during his conversation with this person
did he ever inform her of [Complainant's] pending MSPB appeal or any
other litigation he had pending against the Department." Furthermore,
the RA stated that the caller never called back, and that her office
did not have the caller's telephone number.
Regarding claim (8), the agency argued that the Director of the Civil
Rights Center (Director) stated that when the Commission issued guidance
for accommodation procedures in March 1999, the agency had already been
in the process of revising its accommodation procedures, and that such
efforts began in 1998. The Director stated that the 1999 EEOC Guidance
asked that new procedures be published, the agency began a process to
accomplish the goal of publishing the new procedures. The Director stated
that the proposed new procedures "went through a process during which
many drafts were developed by our Solicitor's Office in coordination
with the Civil Rights Center." The Director stated that in May 2001,
the final proposed new procedures went through the clearance process
that included being sent to the Commission for approval. The Director
stated that after the agency received responses from the Commission in
October 2001, it went "through another round of review and revision."
The Director stated that the existing accommodation procedures in practice
"are consistent with what is being proposed for the new procedures."
The Director stated that the agency had already done what the 1999 EEOC
Guidance suggested. The Director stated that the existing procedures
are referred to as the 306 procedures and "have been in place since 1989."
Further, with respect to complainant's argument that the existing agency
accommodation procedures and those in place at the time of his complaints
were designed to deny the most requests for accommodations as possible,
and that there was a systematic bias against employees requesting
accommodations, the Director stated "this is absolutely not true."
The Director further stated that the process in place was designed
to facilitate the granting of legitimate requests for accommodation.
The Director stated that its procedures "attempt to take bias out of
the system by having independent medical doctors access the requested
accommodation based on a review of the medical information provided by
the employee and information obtained from the employee's doctor when
necessary, with the consent of the employee."
AJ's Decision
On December 2, 2003, the AJ granted the agency's motion to dismiss.
The AJ determined that the agency properly set forth the undisputed
facts and applicable law in its "Respondent's Response to Order and
Motion to Dismiss Complaints Without Hearing," incorporated the Motion
in his decision, and found no discrimination.
The AJ found that complainant failed to state a claim with respect to
claims (2), (3) and (5), finding that these claims constituted collateral
attacks on different forums.
Regarding claim (1), the AJ found that complainant failed to state a
claim, finding that he was not harmed.
Regarding claim (4), the AJ found that �complainant's complaint on this
issue is untimely.� Specifically, the AJ determined that on August 12,
1996, approximately three years prior to the filing of the complaint
containing claim (4) (identified above as �Complaint 4) (Agency
No. 00-02-092),� complainant contacted an EEO Counselor and filed
an informal complaint. Therein, complainant claimed agency reprisal
for the failure to accommodate his medical needs. The AJ found that
complainant reasonably suspected that he was not being accommodated in
1996, but that he failed to use due diligence to pursue this claim by
not continuing the EEO complaint process until approximately three years
later, when he filed Complaint 4, on April 14, 2000.
Regarding claim (6), the AJ found that complainant did not proffer
sufficient evidence to show that he was a qualified individual with a
disability within the meaning of the Rehabilitation Act.<4> The AJ
further concluded that even if complainant was able to prove he was
a qualified individual with a disability, complainant failed to show
that he was discriminated against based on his disability or prior
protected activity. Furthermore, the AJ found that complainant did not
establish that more likely than not, the agency's articulated reasons
were a pretext to mask unlawful discrimination. The AJ noted that there
was no evidence reflecting that complainant's working conditions were
so intolerable that a reasonable person would be compelled to resign.
With respect to claims (7) and (8), the AJ determined that complainant did
not proffer sufficient evidence to show that he was the victim of unlawful
employment discrimination. Regarding claim (8), the AJ determined that
whatever complainant perceived as shortcomings with agency policy relating
to reasonable accommodation did not harm him. The AJ found that there
was no evidence to support complainant's assertion that the agency's
purported failure to change its reasonable accommodation procedures
was done to punish individuals who file frequent EEO complaints.
The AJ determined further that there was not evidence to reflect that
complainant's race had any impact in the policy change process.
On January 26, 2004, the agency issued a final action implementing the
AJ's decision.
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. 29 C.F.R. � 1614.109(g). This regulation is patterned after the
summary judgment procedure set forth in Rule 56 of the Federal Rules of
Civil Procedure. The U.S. Supreme Court has held that summary judgment
is appropriate where a court determines that, given the substantive
legal and evidentiary standards that apply to the case, there exists
no genuine issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment,
a court's function is not to weigh the evidence but rather to determine
whether there are genuine issues for trial. Id. at 249. The evidence of
the non-moving party must be believed at the summary judgment stage and
all justifiable inferences must be drawn in the non-moving party's favor.
Id. at 255. An issue of fact is �genuine� if the evidence is such that
a reasonable fact finder could find in favor of the non-moving party.
Celotex v. Catrett, 477 U.S. 317, 322-323 (1986); Oliver v. Digital
Equipment Corporation, 846 F.2d 103, 105 (1st Cir. 1988). A fact is
�material� if it has the potential to affect the outcome of a case.
If a case can only be resolved by weighing conflicting evidence, summary
judgment is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider summary judgment only upon a
determination that the record has been adequately developed for summary
disposition.
After a careful review of the record, the Commission finds that grant
of summary judgment was appropriate, as no genuine dispute of material
fact exists. We find that the AJ's decision properly summarized the
relevant facts and referenced the appropriate regulations, policies,
and laws. Further, construing the evidence to be most favorable to
complainant, we note that complainant failed to present evidence that
any of the agency's actions were motivated by discriminatory animus
toward complainant's protected classes.
Accordingly, the agency's final action implementing the AJ's decision
finding no discrimination on some claims, and dismissing the remaining
claims was proper and is AFFIRMED.
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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 22, 2005
__________________
Date
1The record reveals that complainant took an
"early out" retirement effective September 3, 1999.
2For ease of reference, the Commission re-numbered complainant's claims
as claims (1) - (8).
3The record reflects that the Commission previously reviewed this matter
when Complaint 4 was previously before the Commission. The Commission
noted therein that complainant requested that Complaint 4 be amended
to include a reprisal claim that on March 15, 2000, the agency made
false and misleading statements resulting in the denial of his OWCP
claim. The Commission noted that the agency dismissed the amendment
to Complaint 4. The Commission further noted that to the extent that
complainant was appealing the amendment to Complaint 4 (regarding the
OWCP claim) the claim was properly dismissed, on the grounds that an
employee cannot use the EEO complaint process to lodge a collateral
attack on other proceedings. Gallo v. Department of Labor, EEOC Appeal
No. 01A04513 (August 7, 2001).
4The Commission presumes for purposes of analysis only and without so
finding, that complainant is a qualified individual with a disability.