Harry Burnett, Complainant,v.Eric H. Holder, Jr., Attorney General, Department of Justice, (Drug Enforcement Administration), Agency.

Equal Employment Opportunity CommissionDec 17, 2009
0120081103 (E.E.O.C. Dec. 17, 2009)

0120081103

12-17-2009

Harry Burnett, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, (Drug Enforcement Administration), Agency.


Harry Burnett,

Complainant,

v.

Eric H. Holder, Jr.,

Attorney General,

Department of Justice,

(Drug Enforcement Administration),

Agency.

Appeal No. 0120081103

Agency No. DEA200700462

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated November 29, 2007, 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., Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

In his complaint, complainant, a Forensic Chemist series 1320, GS-12,

alleged that he was subjected to discrimination on the bases of race

(Black), sex (male), disability, age, and reprisal for prior protected

EEO activity when:

(1) management has harassed and subjected him to a hostile work

environment due to his being "Giglio" impaired;1 and

(2) he received a Letter of Reprimand on March 12, 2007.

Upon review, the Commission finds that the agency appropriately

dismissed issue (2) on the basis of untimely EEO counselor contact.2

As to issue (1), the agency stated that it was subject to dismissal

for failure to state a claim because the claim was "investigated and

is currently pending an administrative hearing." The agency further

noted the following: "Our records reflect that previously, on May 31,

2005, you filed a formal complaint of discrimination against the DEA,

Southwest Laboratory. In this complaint, you allege that you were

subjected to reprisal actions for your EEO activity and regarding the

'Giglio' policy." However, the agency provided no documentation from

which the Commission can verify that in fact the two claims are identical.

Complainant insists, on appeal, that they are not identical, noting that

the "present complaint is the failure of the DEA to respond to allegations

of a hostile working environment generated in connection with my prior

EEO complaint." The Commission therefore, vacates and remands issue

(1) on the grounds that the agency failed to provide documentation that

would support its dismissal.

Accordingly, the agency's final decision's dismissal of issue (1)

is reversed. This portion of the complaint is hereby remanded to the

agency for further processing in accordance with this decision and the

Order below.

ORDER (E0408)

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

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claim 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 a

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 (K1208)

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 77960, Washington,

DC 20013. 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 (M1208)

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 77960,

Washington, DC 20013. 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 (T0408)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with the Court 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

_____12/17/09_____________

Date

1 The record reveals that if individuals are "Giglio-impaired" it means

that there is potential impeachment evidence against them and that

their integrity and/or testimony could be challenged in State or Federal

criminal systems. Legally, any Giglio related issues must be brought to

the attention of a prosecutor for disclosure. Complainant states that

having this impairment directly affects his work as a chemist as he is

frequently required to testify in Federal and State court regarding his

analysis of controlled substances. Complainant asserts that he has been

harassed as a result of being "Giglio impaired" even though an Office of

Professional Responsibility (OPR) investigation was conducted on him,

and cleared him of any wrongdoing. He also contends that a female

chemist in his group has had reportable allegations made against her

by a Federal District Court Judge, which have resulted in no similar

actions being taken.

2 On appeal, complainant does not challenge the dismissal of issue (2).

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0120081103

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120081103