Anthony Gallo, Complainant,v.Alexis M. Herman, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionJul 6, 2000
01A02212 (E.E.O.C. Jul. 6, 2000)

01A02212

07-06-2000

Anthony Gallo, Complainant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.


Anthony Gallo v. Department of Labor

01A02212

July 6, 2000

Anthony Gallo, )

Complainant, )

)

v. ) Appeal No. 01A02212

) Agency No. 9-02-115

Alexis M. Herman, ) 9-02-132

Secretary, )

Department of Labor, )

Agency. )

____________________________________)

DECISION

On January 24, 2000, complainant filed a timely appeal with this

Commission from an agency's decision pertaining to his complaints of

unlawful employment discrimination in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> The

Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. �1614.405).

In February and April 1999, complainant contacted the EEO office regarding

claims of discrimination based on reprisal. Informal efforts to resolve

complainant's concerns were unsuccessful. Thereafter, complainant filed

two formal complaints that are the subject of the instant appeal, dated

April 29, 1999 (Complaint No. 9-02-115) and June 9, 1999 ( Complaint

No. 9-02-132). In Complaint No. 9-02-115, , complainant claimed he was

discriminated against when the agency purportedly declined his request

for a meeting to discuss his 1993 settlement agreement. In Complaint

No. 9-02-132, complainant claimed that when the EEO Counselor attempted

to meet with complainant's supervisor, the supervisor told the Counselor

that she was no longer complainant's supervisor.

On December 27, 1999, the agency issued a decision dismissing both

complaints for failure to state a claim. The agency noted that in 1993,

complainant entered a settlement agreement resolving a complaint filed

in 1991. Thereafter, according to the agency, complainant alleged

breach and filed additional complaints. In addition, complainant filed

a civil action in U.S. District Court. The agency indicated that while

the District Court case was pending, complainant requested a meeting

with management to discuss his settlement agreement. The U.S. Attorney

recommended that management not meet with complainant while the case

was pending without counsel for both sides. Subsequently, complainant

filed an EEO complaint (No. 9-02-115) claiming the incident was based on

reprisal. The agency determined that complainant failed to demonstrate

that the alleged incident affected his employment status, noting that

the meeting was eventually held on June 1, 1999. Complainant's claim

that he was discriminated against when his supervisor denied supervising

complainant (No. 9-02-132), was also dismissed for failure to state a

claim. The agency concluded that, even assuming she was his supervisor,

complainant failed to show how he was harmed by the incident.

On appeal, with respect to Case No. 9-02-115, complainant contends

that the agency failed to justify their decision not to hold the

meeting without complainant's attorney. Complainant argues that the

meeting concerned only internal administrative matters, and that the

agency's denial was an effort to increase complainant's legal costs.

According to complainant, the incident constitutes a pattern of reprisal

and harassment. Further, he contends he was harmed when placed in an

assignment far from his "chosen career." Regarding Case No. 9-02-132,

complainant argues that the supervisor's response to the Counselor

illustrates she had no intention of honoring the settlement agreement.

Complainant contends the "pattern of harassment" resulted in his

constructive discharge, an issue he indicates is before the MSPB.

The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1))

provides, in relevant part, that an agency shall dismiss a complaint

that fails to state a claim. An agency shall accept a complaint from

any aggrieved employee or applicant for employment who believes that he

or she has been discriminated against by that agency because of race,

color, religion, sex, national origin, age or disabling condition.

29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case

precedent has long defined an "aggrieved employee" as one who suffers a

present harm or loss with respect to a term, condition, or privilege of

employment for which there is a remedy. Diaz v. Department of the Air

Force, EEOC Request No. 05931049 (April 21, 1994).

Here, complainant contends that he suffered discrimination based on

reprisal when management failed to meet with him regarding his settlement

agreement until six months after his request (Case No. 9-02-115).

We agree with the agency and find that complainant has failed to show

how the alleged incident resulted in a harm or loss to a term, condition

or privilege of his employment. The record shows that by letter dated

September 29, 1999 the agency provided complainant the opportunity

to show how he was harmed by the alleged incident. After a review of

complainant's response and arguments on appeal, we do not find that the

delayed meeting rendered him an "aggrieved" employee.

Complainant also contends he was discriminated against when his supervisor

told the EEO Counselor that she was not supervising complainant. We note

that on appeal complainant states that "[the supervisor] told the EEO

Counselor she was not my supervisor in the midst of me trying to recapture

the career I had under her supervision." It appears, therefore, that

complainant is in agreement with the supervisor's remark. Nonetheless,

even if the employee was complainant's supervisor, complainant has failed

to show how he was "aggrieved" by the alleged incident. Complainant has

not alleged a harm or loss regarding a term, condition or privilege of

employment for which there is a remedy.

Moreover, we note that on appeal complainant asserts that the incidents

are part of a "pattern of harassment." The Commission finds, however,

that alleged events are not sufficiently severe or pervasive to alter

the conditions of his employment, and therefore fail to state a claim

of discriminatory harassment. See Cobb v. Department of the Treasury,

EEOC Request No. 05970077 (March 13, 1997).

Accordingly, the agency's decision dismissing the complaints for failure

to state a claim was proper and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

July 6, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date

1On November 9, 1999, revised regulations governing the EEOC's

federal sector complaint process went into effect. These regulations

apply to all federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will apply

the revised regulations found at 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.