01982881
09-24-1999
Karl O. Foarile, Appellant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
Karl O. Foarile v. Department of Labor
01982881
September 24, 1999
Karl O. Foarile, )
Appellant, )
)
v. ) Appeal No. 01982881
) Agency Nos. 8-02-012
Alexis M. Herman, ) 8-02-020
Secretary, )
Department of Labor, )
Agency. )
)
DECISION
Appellant filed the instant appeal from the agency's decision dated
February 9, 1998 dismissing apparently all of the allegations raised in
8-02-012 and a portion of 8-02-020. In the February 9, 1998 decision
the agency also accepted multiple allegations from multiple complaints
filed by appellant.
8-02-012
The agency stated that it was dismissing all of the allegations "that
repeat the issues accepted in the above-referenced complaints" for
stating the same claim that is pending before the agency. The Commission
finds that the agency must specifically define the allegations that it
is dismissing. Therefore, we shall vacate the agency's dismissal of
undefined allegations for stating the same claim that is pending before
the agency.
The agency also dismissed the following allegations in 8-02-012 for
failing to state a claim:
Appellant did not receive a timely evaluation.
Appellant did not receive a response to his completion of a PIP.
Appellant was harassed when his manager placed a partial $1 bill on
appellant's chair.
Appellant was denied timely access to EEO counseling.
The agency found that appellant was not aggrieved in allegations 1 - 4.
The Commission finds that allegation 4 was properly dismissed pursuant
to 29 C.F.R. �1614.107(a). The Commission finds that allegations 1 -
3 may be part of appellant's harassment claim which the agency apparently
accepted in other allegations in other complaints listed in the February
9, 1998 decision. The agency has not addressed whether allegations
1 - 3 should be considered as part of the accepted harassment claim.
Therefore, we shall remand allegations 1 - 3 so the agency can consider
whether allegations 1 - 3 should be considered as part of the accepted
harassment claim in the other complaints described in the February 9,
1998 decision.
Reasonable Accommodation
The agency dismissed appellant's denial of reasonable accommodation
allegation raised in 8-02-12 and 8-02-020 on the grounds that the same
allegation was raised in 6-02-018. On appeal appellant explains that
his accommodation requests were different and that his medical condition
had worsened. If appellant is correct that his requests were different
and that his medical condition had worsened between requests, then
the instant claims would not be the same as the prior request(s) for
reasonable accommodation. Appellant's complaints, however, only refer
in general terms to a denial of reasonable accommodation. Therefore,
we shall vacate the reasonable accommodation allegations and remand the
matter so that the agency can contact appellant to clarify the reasonable
accommodation allegations and list the specific dates and incidents at
issue.
The agency's decision dismissing allegation 4 from 8-02-012 is AFFIRMED.
Regarding 8-02-012, the agency's decision dismissing allegations 1 -
3 and the undefined allegations for stating the same claim that is
pending before the agency is VACATED and we REMAND these allegations to
the agency for further processing in accordance with this decision and
applicable regulations. The agency's decision dismissing the reasonable
accommodation allegations raised in 8-02-012 and 8-02-020 is VACATED
and we REMAND the reasonable accommodation allegations to the agency
for further processing in accordance with this decision and applicable
regulations.
ORDER
The agency shall:
Specifically define the allegations in 8-02-012 that it believes states
the same claim that is pending before the agency. The agency, within
30 days of the date this decision becomes final, shall either issue a
letter to appellant accepting the allegations that the agency dismissed
for stating the same claim that is pending before the agency or issue
a decision dismissing these specifically defined allegations.
Determine whether allegations 1 - 3 (in 8-02-012) should be considered
as part of the accepted harassment claim in the other complaints
described in the February 9, 1998 decision. Within 30 days of the date
this decision becomes final the agency shall either issue a letter to
appellant accepting allegations 1 - 3 for investigation or issue a new
decision dismissing allegations 1 - 3.
Contact appellant to clarify the specific dates and incidents at issue
in the reasonable accommodation allegations in 8-02-012 and 8-02-020.
Within 30 days of the date this decision becomes final the agency shall
either issue a letter to appellant accepting the reasonable accommodation
allegations for investigation or issue a new decision dismissing the
reasonable accommodation allegations.
A copy of the letters accepting allegations and/or decisions issued
pursuant to this Order must be sent to the Compliance Officer as
referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
September 24, 1999 Carlton M. Hadden
DATE Acting Director
Office of Federal Operations