01992777
12-19-2000
Thomas Kalil, Complainant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Thomas Kalil v. United States Department of Agriculture
01992777
December 19, 2000
.
Thomas Kalil,
Complainant,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01992777
Agency No. 980490
DECISION
On February 19, 1999, the complainant filed an appeal with this Commission
from a final agency decision (FAD) dated January 15, 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.; the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.; and � 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq. <1> In his complaint,
the complainant alleged that he was subjected to discrimination on
the bases of race (Asian American), religion, national origin (Arab),
physical and mental disability, sex (male), age (45) and reprisal when:
in July 1997, the Deputy Assistant Secretary for Administration (DASA)
filed an EEO complaint naming him as the responsible management official
after he spoke about her misconduct at one of the Secretary's listening
sessions;
he was compelled to participate in the investigation of the DASA's EEO
complaint;
the Employment Complaints Division, Office of Civil Rights (ECD) continued
to process the DASA's untimely complaint despite the conflict of interest
and despite the fact that the Director of ECD informed him that the
DASA's complaint was being processed by the Department of Commerce;
the agency has refused to investigate his claims against the DASA; and
from 1992 to 1993, his former supervisor, assigned him to a position
for which he was not trained.
The agency dismissed claims (1-4) pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim. Specifically, the agency dismissed
claim (1) because an employee may not file an EEO complaint because of
statements made during the processing of another employee's EEO complaint
and because participation under the Whistleblower's Protection Act (WPA)
is not within the jurisdiction of the EEOC. The agency dismissed claims
(2-3) because the complainant did not allege any personal harm and 29
C.F.R. � 1614.108 (c)(1) requires a federal employee to cooperate in
the EEO investigative process. The agency dismissed claim (4) because
it considered the claim to be a �spin-off� and the complainant failed to
show that he suffered a harm or loss with respect to a term, condition,
or privilege of employment. We note that claim (5) was dismissed as
untimely and that the complainant does not appeal that dismissal.
In his appeal the complainant asserts that the agency mischaracterized
his claims as process claims, when the gravamen of his complaint is that
the agency subjected him to disparate treatment by failing to process
his complaint against the DASA and processing her untimely complaint
against him. The complainant asserts that because his complaint concerns
actions regarding the DASA and that the Director of ECD, who dismissed his
complaint, is subordinate to the DASA, there is a conflict of interest
or at least an appearance of a conflict of interest. The complainant
points to the EEOC Management Directive 110 (MD-110) as support for
his assertion that the Director of ECD must not issue a final decision
in this case. In its response to the complainant's appeal, the agency
stands by its decision.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, 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. See 29
C.F.R. � 1614.103 and 29 C.F.R. � 1614.106(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).
To the extent on appeal, that the complainant argues that the agency's
failure to process his complaint, which was filed before the DASA
filed her complaint against him, implicates his right to just and fair
access to the EEO process, we note that these arguments do not state an
independent claim of employment discrimination. However, these statements
may constitute evidence to be submitted during the processing of his
underlying complaint.
Accordingly, we agree with the agency that claims (1-4) appear to be based
on improper agency EEO processes. If the complainant is dissatisfied with
the processing of his pending complaint, he should be referred to the
agency official responsible for the quality of complaints processing.
Agency officials should earnestly attempt to resolve dissatisfaction
with the complaints process as early and expeditiously as possible.
See EEO Management Directive 110 (MD-110), 5-25, 5-26 (November
9, 1999). Furthermore, given the nature of complainant's claims of
improper processing, we find that the proper method for addressing
such matters would be within the continued processing of the previously
filed complaint, Agency No. 980015, to the extent that the complaint is
still pending. Any remedial relief to which appellant would be entitled
would necessarily involve the processing of the underlying complaint.
Consequently, the agency properly dismissed claims (1-4) pursuant to 29
C.F.R. �1614.107(a)(1).
The Commission finds that here, the agency should have had someone
who does not report to the alleged discriminating official issue the
final decision in order to meet its responsibility to avoid even the
appearance of a conflict of interest in processing employee complaints.
See MD-110, 1-2, 5-25, 5-26, 5-27, 6-4. However, to remand these claims,
merely to have another agency official issue the final agency decision
would delay the administrative process unnecessarily.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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 (5) 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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. 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
December 19, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.