01985739
08-19-1999
Antonio A. Alcocer, Appellant, v. Robert E. Rubin, Secretary, Department of the Treasury, ______________________________)
Antonio A. Alcocer, )
Appellant, )
)
v. ) Appeal No. 01985739
) Agency No. 97-4339
Robert E. Rubin, )
Secretary, )
Department of the Treasury, ) Agency. )
______________________________)
DECISION
In a letter dated November 24, 1997, the Department of the Treasury
accepted appellant's formal complaint, dated September 16, 1997, for
processing. The agency framed the issue(s) to be investigated as follows:
Whether Management relieved Complainant of all of his enforcement
duties, including conducting investigations, using a government
vehicle, and failed to certify him for law enforcement availability
pay as a Special Agent on May 30, 1997, and June 19, 1997, because
of discrimination based on his age (Date of Birth: December 7, 1952),
National Origin (Hispanic) and in retaliation for his prior EEO activity.
In its final agency decision ("FAD"), the agency dismissed the
complaint for failure to cooperate pursuant to the provisions of 29
C.F.R. 1614.107(g), which provides for the dismissal 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. 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 in this case, we find that the agency's
dismissal was improper. The FAD states that the agency sent a
facsimile to appellant on February 4, 1998, requesting that he submit
his completed affidavit, along with the names of 15 witnesses he wished
to be interviewed, but that appellant refused to submit the affidavit
or to identify the witnesses. The agency has not placed a copy of this
facsimile in the record. Therefore, not only is there no evidence of
its contents, there is no evidence (nor does the agency even assert
that) it included notice of a proposed dismissal should appellant fail
to respond. We note that EEOC Regulation 29 C.F.R. �1614.107(g) mandates
that the request for information include notice of the consequences of a
failure to respond. Hart v. Department of Veterans Affairs, EEOC Request
No. 05930591 (December 23, 1993). In addition, the record contains no
material capable of establishing that appellant received the facsimile.
It is the burden of the agency to produce evidence which supports
its final decision. Marshall v. Department of the Navy, EEOC Request
No. 05910685 (September 6, 1991).
We also note that the agency failed to show why appellant's affidavit
was necessary for the further processing of the complaint. The agency
has not claimed that the complaint was vague, and the agency found that
there was sufficient information in the record to be able to define
the complaint and accept it for investigation. Moreover, appellant's
complaint, along with the EEO Counselor's Report, addressed the incident
of alleged discrimination, with reference to the responsible agency
official by name, the bases on which he alleged discrimination, and the
corrective action sought. The Commission has held that as a general
rule, an agency should not dismiss a complaint when it has sufficient
information on which to base an adjudication. See Ross v. United States
Postal Service, EEOC Request No. 05900693 (August 17, 1990); Brinson
v. United States Postal Service, EEOC Request No. 05900193 (April
12, 1990). Nonetheless, we further note that the agency states that
appellant continually declined to meet with the first EEO Investigator
assigned and requested the assignment of a new Investigator. After the
second Investigator was assigned, the agency maintains that appellant
continued to decline to schedule a meeting and offered various reasons for
failing to submit an affidavit or identify the 15 persons whom appellant
previously contended should be interviewed. On appeal, appellant states
that "both EEO Investigators refused to interview and take affidavits
from individuals that I thought had a bearing on my case, and until the
interviews are completed I will not comply with any further requests by"
the agency's EEO office. Appellant is cautioned that engaging in delay or
contumacious conduct may result in his complaint properly being dismissed
for failure to cooperate. However, in light of the record before us,
we must find the instant dismissal improper. Accordingly, the FAD is
VACATED and this matter is REMANDED to the agency for further processing
in accordance with this decision and the ORDER set forth 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. �1614.410.
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 (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 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:
August 19, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations