Karl O. Foarile, Appellant,v.Alexis M. Herman, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionSep 24, 1999
01982881 (E.E.O.C. Sep. 24, 1999)

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