01971178
08-04-1999
)
Melvin Mills )
Appellant )
)
v. ) Appeal No. 01971178 ) Agency No. DM-94-213
William S. Cohen, )
Secretary, )
Department of Defense )
Defense Logistics Agency )
Agency. )
______________________________)
DECISION
The appellant filed an appeal with this Commission from a final
agency decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of Title VII, 42 U.S.C. �2000e et. seq.
The final agency decision was dated November 1, 1996. The appeal was
postmarked November 14, 1996 and is therefore timely. We accept the
appeal in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
Whether the agency's dismissal of the complaint for failure to provide
information and for mootness was proper.
BACKGROUND
The record indicates that the appellant initiated contact with an EEO
counselor and was given a notice of final interview on September 20,1994.
Although it was clear the appellant met with an EEO counselor, there
is no EEO Counselor's Report on file in this case as required by 29
C.F.R. �1614.105(c). On September 23, 1994 the appellant filed a
formal complaint alleging that he was the victim of unlawful employment
discrimination on the basis of his race (black) when:
1)he was denied training required for his position;
2)harassed by his supervisor in being blamed for problems on the job,
etc.;
3) denied the use of transportation on the job;
4)disparate treatment in assignments, and in being excluded from
meetings;
5) not allowed to act as a supervisor;
The agency dismissed the complaint pursuant to 29 C.F.R. 1614.107(f)
based on the appellant's failure to respond to a request for information.
The agency had requested the appellant to clarify the remedies he sought
to resolve the complaint.
On appeal the agency contends that the basis for dismissal is more
properly that the complaint is moot because the appellant has retired
from federal service.
The appellant states on appeal that he responded to the agency's request
for information by speaking with the EEO investigating officer. He stated
he did not feel he had the responsibility to "judge" the case.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(g) provides that an agency shall
dismiss a complaint, or a portion of a complaint, where the agency has
provided the complainant with a written request to provide relevant
information or otherwise proceed with the complaint, and the complainant
has failed to respond to the request within 15 days of its receipt
or the complainant's response does not address the agency's request,
provided that the request included a notice of the proposed dismissal.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
The Commission has stated that "it is only in cases where the
complainant has engaged in delay or contumacious conduct and the
record is insufficient to permit adjudication that the Commission has
allowed a complaint to be canceled for failure to prosecute/cooperate."
Kroeten v. U.S. Postal Service, EEOC Request No. 05940451 (December 22,
1994) (citation omitted).
Based on these principles we cannot agree with the agency's dismissal
of the complaint due to the appellant's alleged failure to set forth
his remedies. There was ample information provided in the complaint for
the agency to perform its investigation. There was also no record of
recalcitrance on the part of the appellant of the type described by the
Commission which would warrant a dismissal. We further conclude that
the appellant apparently attempted to respond to the agency's request
but was not clear in his response. Such an attempt to respond cannot
be construed as uncooperativeness.
Further, the agency now argues on appeal that the complaint is moot
because the appellant retired from federal service. The complaint,
however, states that the appellant's "position is Environmental Protection
Specialist GS 028-11. I fill one of the only permanent positions in
the environmental branch. I transferred from the DRMO October 94".
This language suggests that the appellant was still employed in federal
service as of October 1994 after he had filed this complaint. Because
the record is ambiguous on this point we decline to affirm the agency's
dismissal on this basis. We further decline to dismiss the complaint on
this ground because the appellant states issues that potentially raise
a claim for non-promotion and compensatory damages. See, Enterline v.
United States Postal Service, EEOC No. 0197199( January 21, 1999).
Since the agency failed to include an EEO counselor's report, there
is little information about the appellant's claim aside from his bare
complaint. Therefore, it is more appropriate for the agency to resume
processing to determine the exact nature of the claims.
CONCLUSION
Based on a review of the record, we find that the agency improperly
dismissed appellant's complaint, pursuant to EEOC Regulation 29 C.F.R. �
1614.107(f), for failure to respond to a request for information.
Accordingly, the final agency decision is VACATED and REMANDED for
further investigation and processing as indicated below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. � 1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (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(c) (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. � 1614.10.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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 filed your
appeal with the Commission. 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.
Filing a civil action will terminate the administrative processing of
your complaint.
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 filed your appeal with the
Commission. 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:
8/04/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations