01A06027
12-16-2002
Gerald J. Gallegos, Complainant, v. Gale A. Norton, Secretary, Department of the Interior Agency.
Gerald J. Gallegos v. Department of the Interior
01A06027
01A12704
December 16, 2002
.
Gerald J. Gallegos,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior
Agency.
Appeal Nos. 01A06027
01A12704
Agency Nos. BIA-99-022, BIA-99-023, BIA-99-024, BIA-99-025,
BIA-99-026, BIA-99-048, BIA-99-049, BIA-99-054, BIA-99-058.
Hearing No. 320-A0-8181X
DECISION
INTRODUCTION
Complainant filed two appeals regarding final agency actions dated
August 31, 2000 (Appeal No. 01A06027), and March 5, 2001 (Appeal
No. 01A12704). In a final decision dated August 31, 2000, the agency
implemented the decision of an Administrative Judge (AJ) dismissing the
captioned complaints virtually in their entirety for abuse of process,
with the exception of a claim relating to racial slurs in Complaint
No. BIA-99-022, which was accepted by the AJ for investigation. In a
final action dated March 5, 2001, the agency implemented the decision of
the AJ finding no discrimination on the claim relating to racial slurs
in Complaint No. BIA-99-022. The Commission consolidates the complaints
pursuant to 29 C.F.R. �1614.606 and VACATES the agency's determinations
for the reasons set forth below.
BACKGROUND
The record reveals that during the relevant time, complainant was
employed as a Social Worker, GS-1085-12, at the agency's Branch of Social
Services in the Aberdeen Area Office of the Bureau of Indian Affairs
(BIA), Aberdeen, South Dakota. Complainant sought EEO counseling
and subsequently filed nine formal complaints on February 18, 1999
(BIA-99-022); March 17, 1999(BIA-99-023); January 29, 1999 (BIA-99-024);
February 2, 1999 (BIA-99-025); April 26, 1999 (BIA-99-026); April
12, 1999 (BIA-99-048); June 2, 1999 (BIA-99-049); and July 13,
1999 (BIA-99-054), alleging that he was subjected to a hostile work
environment on the bases of national origin, sex, and in reprisal for
prior EEO activity.
The record also reflects that complainant filed an appeal from a
final agency decision dated August 31, 2001, dismissing thirteen of
complainant's complaints. In its decision, the agency found that
complainant's complaints were comprised of more than 450 claims.
The agency dismissed complainant's complaints in part pursuant to 29
C.F.R. 1614.107(a)(1) for failure to state a claim, and dismissed all
thirteen complaints pursuant to 29 C.F.R. 1614.107(a)(9) for misuse of
the EEO process. The agency's determination concerning those thirteen
complaints is at issue before the Commission in EEOC Appeal No. 01A15408.
In the nine complaints that are the subject of the instant appeal,
a fair reading of the record reflects that the agency categorized all
353 claims in eight groups, as follows:
1. Management repeatedly violated the terms of the April 1998 Mediation
Agreement;
2. There existed a lack of communication between management and
complainant;
3. Complainant has been a victim of surveillance;
4. Complainant's witnesses who were going to testify on his behalf with
respect to his EEO complaints were intimidated by management;
5. Managers and co-workers came to work late but were not disciplined;
6. Management and co-workers received preferential treatment with
respect to travel, training, use of office cell phone, use of a government
vehicle, and other working conditions;
7. Management delayed action on complainant's leave, compensation time,
training, and alternate work schedule requests; and
8. Complainant was dissatisfied with the agency's EEO processing of
his complaints.
On February 28, 2000, the agency issued a partial dismissal, dismissing
the nine complaints almost in their entirety pursuant to 29 C.F.R. �
1614.107(a)(9), for abuse of the EEO process, except for a sole claim
from one complaint (BIA-99-022) in which complainant claimed he had been
subjected to racial slurs.
Following the investigation of the accepted claim regarding racial
slurs in Complaint No. BIA-99-022, complainant received a copy of the
investigative report and requested a hearing before an AJ. On June 9,
2000, the assigned AJ dismissed all nine complaints in their entirety
pursuant to 29 C.F.R. � 1614.107(a)(9), for abuse of the EEO process,
except the �racial slurs� claim in Complaint No.BIA-99-022. The AJ stated
that he would �keep BIA-99-022 in [his] office� to continue processing
the remaining claim.
On August 31, 2000, the agency issued a final order implementing the
AJ's decision of June 9, 2000. The agency noted that the �racial slurs�
claim, accepted for investigation, would be the subject of future action
by the AJ (Complaint No. BIA-99-022). On September 15, 2000, complainant
filed a timely appeal with the Commission from the agency's final order
of August 31, 2000, dismissing the nine complaints for abuse of process
and this appeal is identified as Appeal No. 01A06027.
On February 9, 2001, the AJ issued a decision on the accepted claim in
Complaint No. BIA-99-022 without a hearing, finding no discrimination.
The AJ concluded that complainant failed to establish a prima facie
case of retaliation. The AJ found that complainant failed to establish
a causal connection between the harassment and his protected classes.
The AJ concluded that one incident involving racial slurs does not
establish that the conduct was either severe or pervasive. The AJ
also concluded that complainant failed to establish a prima facie
case of a hostile work environment based on sex or national origin.
Additionally, the AJ concluded that the agency articulated a legitimate,
nondiscriminatory reasons for its actions. The AJ found that complainant
did not establish that more likely than not, the agency's articulated
reason was a pretext to mask unlawful discrimination. The agency's March
5, 2001 final order implemented the AJ's decision. Complainant filed
a timely appeal from the March 5, 2001 final order, and this appeal is
identified as EEOC Appeal No. 01A12704.
ANALYSIS AND FINDINGS
Abuse of process can be found when there is a clear pattern of misuse
of the process for ends other than that which it was designed to
accomplish. Buren v. USPS, EEOC Request No. 05850299 (November 18,
1985). The criteria required to justify dismissal for abuse of process,
as set forth in Commission decisions, must be applied strictly. Sessoms
v. United States Postal Service, EEOC Appeal No. 01973440 (June 11,
1998). These criteria require:
(1) Evidence of multiple complaint filings; and
(2) Allegations that are similar or identical, lack specificity or
involve matters previously resolved; or
(3)Evidence of circumventing other administrative processes, retaliating
against the agency's in-house administrative process or overburdening
the EEO complaint system. See 29 C.F.R. � 1614.107(a)(9).
Nevertheless, only on very rare occasions has the Commission found that
a particular complaint
constitutes abuse of process, mainly because public policy favors the
preservation of complainants'
EEO rights whenever possible. Love v. Pullman, Inc., 404 U.S. 552 (1972);
Wrenn v. EEOC, EEOC Appeal No. 01932105 (August 19, 1993).
Upon review, we find that the agency improperly dismissed the consolidated
complaint for abuse of process. The Commission recognizes that
complainant has filed over twenty complaints and that the agency has
framed the complaints as being comprised of over 800 claims. However,
the instant complaint is submitted in a chronological annotation that is
reflective of a daily log. Complainant's submission of a comprehensive
list in such a format is more reflective of an intent to underscore the
pervasive nature of the alleged discriminatory treatment from which he
suffers, rather than retaliation against the agency's administrative
process or overburdening of the EEO complaint system. Therefore,
we find dismissal of the instant complaints pursuant to 29 C.F.R.
� 1614.107(a)(9) to be improper.
Additionally, the Commission determines that the agency's framing of
complainant's claims is inadequate. The Commission is unable to determine
from the agency's framing of the complaints what are the specific claims
raised in the complaint. The Commission's review reflects that there are
far fewer actual claims than the 350 plus claims stated by the agency.
The Commission will therefore vacate the dismissal of the complaint and
remand the complaint to arrange for the agency to contact complainant
to clarify the precise claims/adverse actions raised, as opposed to
incidents cited as evidence to support those claims.
Moreover, in view of our determination herein that the nine complaints
were improperly dismissed for abuse of process, we find that the merits
determination on the �racial slurs� claim in Complaint No. BIA-99-022
should be vacated. This claim must be remanded for inclusion in the
further processing of complainant's complaint as identified below.
We note that complainant may be alleging breach of a settlement agreement.
To the extent that the agreement arose from prior EEO complaints, the
agency must process the claims in accordance with 29 C.F.R. � 1614.504
et seq. Complainant has the right to file an appeal alleging settlement
breach thirty-five days after he was served the agency's EEO Director in
writing of non-compliance claims. See 29 C.F.R. � 1614.504(a) and (b).
CONCLUSION
The Commission VACATES the agency's final decisions and REMANDS the
complaints for further processing in accordance with the ORDER below.
ORDER
The agency is ORDERED to schedule in writing a meeting between complainant
and an EEO Counselor so an agreement can be reached on the claims in
complainant's complaints. After the meeting(s), the EEO Counselor must
issue a new EEO Counselor's report concerning the meeting(s) and defining
the claims of the complaint. Complainant shall not be required to refile
his complaint. The agency shall only define the specific claims and
shall not include any evidence of discrimination or background evidence
as separate discrimination claims. As previously noted, another of
complainant's complaints is pending before the Commission on appeal in
EEOC Appeal No. 01A15408. Should that appeal result in a remand of any
of complainant's claims, the agency is ordered to consolidate the instant
complaints with any claims remanded through EEOC Appeal No. 01A15408 in
accordance with 29 C.F.R. � 1614.606.
Within ninety (90) days of the date that this decision becomes final, the
agency shall issue a letter to complainant accepting the remanded claims
for investigation or issue a new decision dismissing the remanded claims.
A copy of the agency's letter of acceptance or final decision 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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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 16, 2002
__________________
Date