Dominic Gallo, Complainant,v.Rodney E. Slater, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionApr 24, 2000
01a00525 (E.E.O.C. Apr. 24, 2000)

01a00525

04-24-2000

Dominic Gallo, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.


Dominic Gallo, )

Complainant, )

)

v. ) Appeal No. 01A00525

) Agency No. 6996094

Rodney E. Slater, )

Secretary, )

Department of Transportation, )

Agency. )

____________________________________)

DECISION

On October 18, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) issued on September 14,

1999, pertaining to his complaint 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. and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> Pursuant to 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405),

the Commission accepts the complainant's appeal from the agency's final

decision in the above-entitled matter.

The record reflects, that for the relevant period of time, complainant

was employed by the Department of Transportation as an Aviation Safety

Inspector, FG-1825-113. On June 12, 1999, complainant initiated contact

with an EEO Counselor. During the counseling period, complainant stated

that he had been subjected to discrimination when:

Complainant was denied the opportunity to submit a bid for a job he

was interested in; and

A temporary job complainant was interested in was not announced and

complainant learned that it was filled by another employee.

Counseling failed, and on July 28, 1999, complainant filed a formal

complaint claiming that he was the victim of unlawful discrimination on

the bases of his national origin (Italian American), age (forty and over)

and reprisal for actions taken on Sun Pacific International Airlines. The

formal complaint was comprised of the following claims of discrimination:

Complainant was denied the opportunity to submit a bid for a job he

was interested in;

A temporary job complainant was interested in was not announced and

complainant learned that it was filled by another employee; and

Complainant's position description was cut in half and given to a younger

employee to prevent complainant from attaining a FG-14 level position.

On September 14, 1999, the agency issued a final decision dismissing the

present complaint. Specifically, with regards to claim one, the agency

dismissed this claim because complainant previously raised this issue

before a negotiated grievance procedure. With respect to claim two,

the agency found that this allegation failed to state a claim because

complainant was not considered to be an aggrieved employee. And finally,

the agency dismissed claim three, because complainant failed to raise

this allegation before an EEO Counselor.

ANALYSIS AND FINDINGS

With regards to claim one, volume 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(4))

provides that an agency may dismiss a complaint where the complainant

has raised the matter in a negotiated grievance procedure that permits

claims of discrimination. In the instant case, the record clearly shows

that complainant filed a grievance concerning the matter identified in

claim one. However, the record does not contain any information as to

whether, under the negotiated agreement, the complainant is able to

raise a claim of discrimination within his grievance. Furthermore,

complainant's grievance, does not make mention that his claim is based

on discrimination. Therefore, it is impossible for the Commission to

determine whether complainant had the right to raise the matter before

the grievance procedure but failed to do so, or if by agreement, he was

precluded from raising the matter of discrimination before the grievance

procedure. Thus, the agency has failed to substantiate the bases for its

final decision. See Marshall v. Department of the Navy, EEOC Request

No. 05910685 (September 6, 1991). Accordingly, The Commission finds

that the agency improperly dismissed claim one pursuant to 29 C.F.R. �

1614.107(a)(4). Therefore, the Commission hereby REVERSES the agency

decision dismissing claim one. Accordingly, this claim is REMANDED to

the agency for further processing in accordance with this decision and

applicable regulations.

With respect to claim two, volume 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).

Upon review, the Commission finds that claim two was properly dismissed

pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and

hereinafter referred to as EEOC Regulation 29 C.F.R. � 1614.107(a)(1)).

Complainant alleged that he was discriminated against on the bases

of his national origin (Italian American), age (forty and over) and

reprisal for actions taken on Sun Pacific International Airlines when,

a temporary position complainant was interested in, was not announced,

and complainant later learned that the position was filled.

On appeal, no persuasive arguments or evidence have been presented

regarding whether complainant has stated a claim, i.e., to show that

complainant was injured by the incident raised. Accordingly, the agency's

final decision dismissing claim two is AFFIRMED.

Next, the agency dismissed claim three for failure to raise this issue

before the EEO Counselor. Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to

be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(2)) states,

in pertinent part, that an agency shall dismiss a complaint which raises

a matter that has not been brought to the attention of an EEO Counselor,

and is not like or related to a matter on which the complainant has

received counseling. A later claim or complaint is "like or related"

to the original complaint if the later claim or complaint adds to

or clarifies the original complaint and could have reasonably been

expected to grow out of the original complaint during the investigation.

See Scher v. United States Postal Service, EEOC Request No. 05940702

(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request

No. 05891068 (March 8, 1990). In this case, claim three was not raised

before an EEO Counselor and it does not add to or clarify the original

complaint, and it cannot be reasonably expected to grow out of the

original complaint during the investigation. Therefore, the agency's

decision to dismiss this claim is AFFIRMED.

As a final matter, the agency, in their final decision, dismissed

complainant's basis of reprisal because he did not engage in a protected

activity. With regards to the basis of reprisal, the Commission has

stated that:

The anti-reprisal provision of Title VII protects those who participate

in the EEO process and also those who oppose discriminatory employment

practices. Participation occurs when an employee has made a charge,

testified, assisted, or participated in any manner in an investigation,

proceeding or hearing. Participation also occurs when an employee files

a labor grievance, if the employee raised issues of unlawful employment

discrimination in the grievance. . . . A variety of activities has been

found to constitute opposition . . . . Because the enforcement of Title

VII depends on the willingness of employees to oppose unlawful employment

practices or policies, courts have interpreted section 704(a) of Title

VII as intending to provide �exceptionally broad protection to those who

oppose such practices'. . . ." Whipple v. Department of Veterans Affairs,

EEOC Request No. 05910784 (February 21, 1992) (citations omitted).

Finally, we note that Title VII protects a person "where the employee

has a reasonable, good faith belief that the challenged employment

practice violates Title VII, even if the belief is later found to be

mistaken. . . . The mistaken belief may be one of law or of fact."

Whipple, supra, quoting Wolf v. J.I. Case Co., 617 F. Supp. 858, 868

(E.D. Wis. 1985). According to the record, there is no evidence

that complainant opposed any unlawful employment practice, let

alone participation in the EEO process or a grievance process where

discrimination has been raised. Accordingly, the agency decision to

dismiss the basis of reprisal is AFFIRMED.

ORDER (E1199)

The agency is ORDERED to process the remanded claim in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless the

matter is otherwise resolved prior to that time. If the complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request.

A copy of the agency's letter of acknowledgment to complainant and an

copy of the notice that transmits the investigative file and notice of

rights must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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)(Supp. V 1993). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION

(R1199)

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:

April 24, 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 Equal Employment Assistant1On 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.