0120064737
02-15-2007
Thomas F. Kalil, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Thomas F. Kalil,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01200647371
Hearing No. 100-2005-00394X
Agency Nos. FSA200300011 & FSA200400028 (formerly 040371 & 040014)
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 28, 2006, dismissing his complaints 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. On October 23,
2003, in a complaint identified as 040014, complainant alleged that the
agency discriminated against him on the bases of race (Asian), national
origin (Middle Eastern/Semitic), sex (male), religion (Catholic), color
(Brown), disability (learning impairment, back problems, and arthritic
ankles), age (over 40), sexual orientation, marital and parental status,
political beliefs, and reprisal for prior protected EEO activity when, in
June 2003, it failed to acknowledge him with an Administrator's Award.2
The agency conducted an investigation on the matter and, subsequently,
informed complainant of the right to request a hearing before an
EEOC Administrative Judge (AJ) or an immediate final agency decision.
Complainant requested the former.
Prior to his October 2003 complaint, complainant filed a civil action
(identified as Civil Action No. 01-2194 (RJL)) in the United States
District Court for the District of Columbia. On January 14, 2004,
complainant filed an Amended Complaint for Relief from Discrimination,
Harassment, and Reprisal in Federal Employment to his civil action. The
Amended Complaint included a paragraph that stated, "Beginning as early
as 1993, [complainant] has continuously been subjected to an atmosphere
of discrimination, harassment and retaliation. . . . [Complainant] has
also received threats of discipline, actual discipline, lowered and/or
negative performance evaluations, and a loss of monetary benefits and
denial of awards."
Pursuant to 29 C.F.R. � 1614.107(a)(3), the agency filed a Motion to
Dismiss with the AJ. In an Order dated May 31, 2006, the AJ dismissed
agency complaints 040371 and 040014. Specifically, the AJ stated that,
in October 2003, complainant filed a formal complaint alleging that
the agency discriminated against him when it failed to grant him an
Administrator's Award and complainant included denial of awards since 1993
in his civil action. Subsequently, on June 28, 2006, the agency issued
a decision fully implementing the AJ's dismissal. Complainant filed
the instant appeal.
As noted by the AJ in his May 2006 dismissal, complainant filed a civil
action in the United States District Court for the District of Columbia
that encompasses the issue raised in agency complaint number 040014
so, pursuant to 29 C.F.R. � 1614.107(a)(3) & .109(b), that complaint
warrants dismissal. The agency's final decision fully implemented the
AJ's decision to dismiss 040014. The Commission agrees that the issue
in 040014 is encompassed by the matter raised in the above-identified
civil action. Therefore, we find that the agency properly dismissed
complaint 040014 pursuant to 29 C.F.R. � 1614.107(a)(3).
However, we note that neither the AJ nor the agency have addressed a
second complaint, agency complaint number 040371, that had apparently
been consolidated with agency complaint number 040014 for hearing.3
This second complaint, according to complainant, concerns a number of
incidents including threatened disciplinary action, denial of training,
and physical violence. The Commission finds that there is insufficient
information in the record to conclude that agency complaint number 040371
should also be dismissed because of the pending civil action. The record
forwarded by the agency does not contain the formal complaint identified
as 040371 and accepted by the agency for investigation to compare to the
issues raised in the civil action. After a careful review of the record,
we AFFIRM the agency's dismissal of 040014 and REVERSE its dismissal of
040371 and REMAND 040371 to the agency for processing from the point
that processing ceased.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 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 (K0501)
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 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 (M0701)
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 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 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 (T0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 15, 2007
__________________
Date
1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
2 We note that sexual orientation, marital status, parental status,
and political beliefs are not covered by the Federal regulations that
this Commission enforces. See 29 C.F.R. � 1614.101.
3 We do note, however, that both agency complaint numbers are in the
caption of the AJ's decision.
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0120064737
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064737