01A03893_r
12-12-2002
Gerald J. Gallegos, Complainant, v. Gail A. Norton, Secretary, Department of the Interior Agency.
Gerald J. Gallegos v. Department of the Interior
01A03893
December 12, 2002
.
Gerald J. Gallegos,
Complainant,
v.
Gail A. Norton,
Secretary,
Department of the Interior
Agency.
Appeal No. 01A03893
Agency No. BIA-99-006
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision dated April 19, 2000, dismissing his complaint 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405.
In his formal complaint, filed on September 21, 1998, complainant alleged
that he was subjected to discrimination on the bases of race and sex when:
1. on September 15, 1997, his formal EEO complaint and all the data
collected was torn up and thrown in the trash by the EEO Counselor, as
directed by the EEO Manager, and delayed the processing of his complaint;
2. on or about April 1, 1997, June 1, 1997, and July 1997, he made a
verbal request to the EEO Manager for an EEO Counselor and he was told
that he would have to make his requests in writing;
3. on or about August 1, 1997, April 15, 1998, and January 28, 1998,
he was told by the EEO Manager that all of his complaints had to go
through her;
4. on or about April 15, 1998, he was in a confidential meeting
with the EEO Manager discussing his EEO complaint when this meeting
was interrupted by her son-in-law, and that he refused to leave at
complainant's request; and
5. on November 15, 1996, the daughter of the EEO Manager confronted
his fianc� at an outside establishment and told her that she better
stay away from complainant because he is nothing but trouble and that
he filed numerous EEO complaints.
The agency dismissed claims (1) - (4) on the grounds that complainant
alleged dissatisfaction with the processing of his allegations of
discrimination by the EEO officials. The agency concluded that claims (1)
- (4) would be remanded to the Director, Office for Equal Opportunity
Programs with instructions to attempt to resolve the matter complainant
has raised and/or document why corrective action was deemed unnecessary.
The agency dismissed claim (5) for failure to state a claim.
The Commission finds that claims (1) - (4) were properly dismissed
pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(8) on the grounds
that they allege dissatisfaction with the processing of EEO complaints.
The Commission finds claim (5) was properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim because complainant
failed to show that he suffered a personal loss or harm with respect
to a term, condition, or privilege of his employment for which there is
any remedy available within the Commission's jurisdiction.
Accordingly, the agency's final decision dismissing the complaint was
proper and is hereby AFFIRMED for the reasons set forth herein.
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
December 12, 2002
__________________
Date