01A62850
08-24-2006
Abdula L. Jackson, Complainant, v. Bruce R. James, Public Printer, United States Government Printing Office, Agency.
Abdula L. Jackson,
Complainant,
v.
Bruce R. James,
Public Printer,
United States Government Printing Office,
Agency.
Appeal No. 01A62850
Agency Nos. 05-03 & 05-13
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 1, 2006, dismissing her complaint 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.
Complainant filed two formal EEO complaints - 05-03 and 05-13. In her
complaints, complainant alleged that the agency subjected her to hostile
work environment harassment on the bases of race (African-American), sex
(female), and reprisal for prior protected EEO activity when it (1) failed
to complete or investigate appropriately incident reports involving
complainant, (2) failed to issue complainant a "female vest" in a timely
manner, (3) denied complainant's requests for official time, (4) delayed
approval of complainant's request for a schedule change, (5) made
derogatory comments and displayed a derogatory attitude toward complainant,
(6) failed to select complainant for a promotion and (7) assigned
complainant work outside of her medical restrictions. Further, complainant
alleged that the agency treated coworkers outside of her protected classes
more favorably regarding leave usage, work privileges, evaluations, and
overtime. Complainant's complaints combined contain seven and a quarter
pages of attachments detailing her claims.
In its March 1, 2006 final decision, the agency dismissed complainant's
complaints, pursuant to 29 C.F.R. � 1614.107(a)(7), for failure to
cooperate. The agency stated that it sent her a letter dated December 21,
2005, via certified mail, asking her to contact the agency EEO Office to
provide additional information; and, to do so within 15 calendar days or
risk dismissal of her complaints. Further, the agency stated that the
postal service returned the December 21 letter as "unclaimed," so the
agency sent complainant the same letter via regular mail, and attempted to
contact her by telephone on several occasions prior to sending the letters.
The agency explained that it lacked sufficient information in the record
to continue processing the complaints.[1] The agency provided copies of
envelopes addressed to complainant at her current address of record that
are marked "unclaimed, returned to sender." Complainant filed the instant
appeal.
On appeal, complainant stated that, on November 17, 2004, she initiated
contact with an agency EEO Counselor (EC1) regarding the adverse actions
alleged in complaint number 05-03. Further, complainant stated that, in
March 2005, the agency issued her a disciplinary action and did not allow
her to return to agency premises. She alleged that the disciplinary action
was another instance of reprisal by the agency and, on April 20, 2005, she
filed a subsequent formal complaint - 05-13. Complainant noted that the
agency never provided her with a copy of the Counselor's Reports.
Complainant indicated that the agency should have been able to contact her
for additional information because she returned to full duty from
discipline on November 8, 2005, EEO staff greeted her in passing in agency
hallways, her address has remained the same, and the agency was aware that
she had a representative but did not attempt to contact him/her.
The regulation set forth at 29 C.F.R. � 1614.107(a)(7) provides for the
dismissal of a complaint "[w]here 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." The regulation further provides that,
instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available. Under
the circumstances of this case, we find that the agency's dismissal of
complainant's complaints for failure to cooperate was improper.
The record reveals the information that follows. In November 2004,
complainant initiated contact with an EEO Counselor to resolve her claims.
Subsequently, she filed formal complaints utilizing complaint forms and
over seven pages of attachments. In a letter dated December 21, 2005, the
agency informed complainant that it attempted to contact her by telephone
several times and that she needed to contact the agency EEO Office within
15 calendar days to prevent dismissal of her complaints. The agency
explained that it lacked sufficient information to process complainant's
claims. The record shows that the agency sent, via certified mail, various
correspondences to complainant's current address of record and the mail was
returned "unclaimed." Complainant stated that she returned to work prior
to the December 21, 2005 letter and that the agency had ample opportunities
to communicate with her so that she could provide additional information.
She added that the agency never issued her a copy of the EEO Counselor's
Reports. The agency stated that it does not have Counselor's Reports for
complainant's complaints because it can not locate them.
The Commission finds that the agency's dismissal of the complaint for
failure to cooperate was inappropriate. We rely heavily on the fact that,
although the agency lost the EEO Counselor's Reports related to
complainant's claims, it claimed that it lacked sufficient information to
continue processing complainant's claims as permitted by 29 C.F.R. �
1614.107(a)(7). Assumedly, the counselor's reports would identify clearly
the issues discussed in counseling and give clarity to those reiterated in
the formal complaints, which would allow the agency to consider the claims
for investigation. Thus, we reverse the agency's final decision and remand
the complaints to the agency in accordance with this decision and the order
below. However, importantly, we remind complainant that she must be
prepared to proceed with the complaint at all times and inform the agency
of any changes in her contact information; or risk subsequent dismissal of
her complaints.
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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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 tends 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 (R0900)
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 within ninety (90) calendar days from the date that you
receive this decision. 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 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
August 24, 2006
__________________
Date
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[1]We note that the instant complaint file does not contain EEO Counselor's
Reports. The record indicates that the agency is unable to locate reports
related to the above-indicated complaints and the assigned Counselor, who
is no longer with the agency, did not retain additional copies. The record
contains communication between the agency and the former Counselor to
determine whether the Counselor can recall if she provided counseling to
complainant on the claims alleged in her formal complaints.