01A15408_r
12-16-2002
Gerold J. Gallegos, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Gerold J. Gallegos v. Department of the Interior
01A15408
December 16, 2002
.
Gerold J. Gallegos,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A15408
Agency Nos. BIA-01-016, BIA-01-017, BIA-01-018, BIA-01-019, BIA-01-020,
BIA-01-021, BIA-01-022, BIA-01-023, BIA-01-024, BIA-01-025, BIA-01-026,
BIA-01-027, BIA-01-028
DECISION
The instant appeal is from the agency's final decision dated August 23,
2001, dismissing 13 of complainant's complaints. In a final decision
dated August 23, 2001, the agency consolidated 13 complaints filed by
complainant in which he alleged that he was subjected to discrimination
on the bases of race (Hispanic), sex (male), and reprisal for prior
EEO activity. In its decision, the agency found that complainant's
complaints were comprised of more than 450 claims. After summarizing
each of complainant's complaints and identifying typical claims in each,
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 further
dismissed all 13 complaints in their entirety pursuant to 29 C.F.R. �
1614.107(a)(9), for misuse of the EEO process. For the reasons set
forth below, we vacate the agency's final decision.
BACKGROUND
Complainant is a Social Worker, GS-0185-12, at the agency's Branch
of Social Services, Aberdeen, South Dakota facility. In 1999,
complainant filed nine complaints, containing approximately 350 claims.
Those 350 claims concern incidents allegedly occurring from October 1998
through June 1999. The agency consolidated the nine 1999 complaints
for processing. The EEOC Administrative Judge (AJ) assigned to those
complaints dismissed all nine 1999 complaints pursuant to 29 C.F.R. �
1614.107(a)(9) for misuse of the EEO process, except a single claim in one
complaint in which complainant claimed he had been subjected to racial
slurs. On the sole remaining claim, the AJ found no discrimination.
Complainant has appealed the agency's final decision (concerning those
nine complaints) which fully implemented the AJ's decision. The agency's
determination concerning those nine complaints is at issue before the
Commission in EEOC Appeal Nos. 01A06027 and 01A12704.
In the August 23, 2001 final decision at issue in this decision, the
agency categorized all 450 plus claims of complainant's 13 complaints,
without further enumeration, into seven overall groups as follows:
Complainant's rights to have his discrimination complaints processed
properly were abridged;
Management officials attempted to intimidate the witnesses who were going
to testify on complainant's behalf with respect to his EEO complaints;
Complainant was subjected to a racially offensive comment;
Agency officials repeatedly breached a Mediation Agreement;
Managers and other employees came to work late but were not disciplined;
Management officials were monitoring complainant's time and attendance
carefully;
Complainant's supervisor, S1, received preferential treatment with
respect to travel, training, and other working conditions.
The agency's final decision concludes by dismissing all 450 plus claims
pursuant to 29 C.F.R. � 1614.107(a)(9) for misuse of the EEO process and
additionally dismisses the following three groups of claims for failure
to state a claim pursuant to � 1614.107(a)(1): (1) failures with respect
to the processing of complainant's EEO complaints; (2) intimidation of
complainant's witnesses; and (3) the offensive racial comment.
ANALYSIS and FINDINGS
Misuse of the EEO Process
The agency determined that complainant's 13 consolidated complaints
should be dismissed for misuse of the EEO process. At this juncture
the Commission does not find that complainant is using the �EEO process
for a purpose other than the prevention and elimination of employment
discrimination.� See 29 C.F.R. � 1614.107(a)(9). The Commission
recognizes that complainant has filed over 20 complaints and that
the agency has framed these complaints as containing over 800 claims.
Complainant's complaints in the instant appeal, however, are submitted
in the form of a narrative daily log. It appears to the Commission that
complainant lists so many dates and incidents in order to illustrate the
alleged pervasive nature of the alleged disparate treatment he receives.
Complainant often lists daily incidents that are merely evidence (or
background descriptions) of one claim. For instance, in BIA-01-017,
complainant alleges on two separate dates that Person A has directed
complainant to work outside of his position description. This appears
to be one claim that complainant is being directed to work outside of his
position description and should not be considered as two separate claims.
Complainant does not appear to be misusing the EEO process, but appears to
have filed complaints which are unwieldy and incapable of investigation
in their present form. Therefore, we find dismissal of the complaints
under � 1614.107(a)(9) to be improper at this point in time. Complainant,
is reminded, however, in the future to specifically list only the claims
of discrimination in his complaint and to save background information
or evidence for the investigatory stage of the complaint.
Failure to State a Claim
The Commission finds the agency's framing of complainant's claims
to be inadequate. The Commission can not determine from the agency's
framing of the complaints what are the specific claims in the complaint.
The Commission finds that the agency should number the claims and provide
dates for each of the alleged incidents. It appears that the dates
of incidents in the instant complaints include (at least) incidents
from June 1999 through November 2000. The Commission's review of the
complaints indicates that there are far fewer actual claims than the
450 plus claims stated by the agency. Therefore, we shall remand the
complaint so that the agency may contact complainant to clarify what
are the specific claims in the complaints, which are separate from the
evidence used to support those claims.
While we make no finding regarding the agency's dismissal of complainant's
claims for failure to state a claim, we recognize that complainant
has, amidst his lengthy chronicles, alleged numerous discrete adverse
personnel actions not addressed specifically in the conclusion of the
agency's final decision including: denied overtime, denied annual
leave, denied administrative leave, denied training opportunities,
discriminatory details, denied compensatory time, untimely or absent
performance standards, denied holiday pay, denied awards, and denied
alternate work schedules.
Additionally, we note that complainant may be alleging breach of one or
more purported settlement agreements. To the extent the agreements arose
from prior EEO complaints, the agency must process complainant's claims in
accordance with 29 C.F.R. � 1614.504 et seq. Complainant has the right
to file an appeal alleging breach of an EEO settlement agreement 35 days
after he has served the agency (the EEO Director) in writing of claims
of non-compliance even if the agency has not issued a determination.
See 29 C.F.R. � 1614.504(a) - (b).
CONCLUSION
After a careful review of the record, we hereby VACATE the agency's
final decision and REMAND the complaints for further processing as
directed herein.
ORDER
The agency shall 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 Counselor must
issue a new Counselor's report concerning the meeting(s) and defining
the claims of the complaint. The agency should give complainant
an opportunity to comment on the agency's framing of the complaint.
Complainant shall not be required to refile his complaint. The agency
shall only define the specific claims of the complaint and shall not
include alleged evidence of discrimination or background evidence as
separate claims of discrimination. As previously noted, other complaints
of complainant are pending before the Commission on appeal in EEOC Appeal
Nos. 01A06027 and 01A12704. Should those appeals result in a remand of
any of complainant's claims, the agency shall consolidate the instant 13
complaints with the claims being remanded in EEOC Appeal Nos. 01A06027
and 01A12704 in accordance with 29 C.F.R. � 1614.606.
Within 90 days of the date 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 herein.
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