0120140889
06-10-2014
Complainant, v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency.
Complainant,
v.
Dr. Ernest Moniz,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120140889
Agency No. 130042CBC
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 21, 2013, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Accountant (Internal Review) at the Agency's Office of Financial Management facility in Cincinnati, Ohio.
On March 9, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of age (63) when, on November 2, 2013, he received a notice of proposed removal, and when he was subjected to a hostile work environment. Complainant's hostile work environment claim involved the following alleged actions:
* his functional area responsibilities to create the SSP report was taken away from him and given to a less experienced employee;
* he was denied assessment data needed to complete an assignment on schedule;
* he was not allowed to implement an assessment plan that had previously been approved by the supervisor;
* he was not provided adequate training;
* he was treated differently than other employees when he was denied a cell phone and travel card as well all employees in his office;
* he was forced to revise assessment report conclusions; and
* he, as "assessor," was not allowed unfettered access to data needed to complete/conduct his assessment.
The Agency initially accepted the complaint and proceeded to investigate. After unsuccessful attempts to get an affidavit from Complainant, he was sent a notice on September 12, 2013, requesting his participation in the investigation or face dismissal of his complaint. Complainant was requested to provide a date when he could be interviewed and to get his affidavit. By email on September 26, 2013, Complainant stated that, "I invoke my Fifth Amendment right not to give a statement."
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(7), for failure to cooperate, finding that the complaint contained insufficient information and evidence to make a decision. The Agency found that Complainant failed to diligently pursue his claim.
The instant appeal followed. Complainant did not make any arguments on appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) 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 fifteen 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. Generally, the Commission has held that an agency should not dismiss a complaint when it has sufficient information upon 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). 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 as allowed a complaint to be dismissed for failure to cooperate. See Card v. United States Postal Service, EEOC Request No. 05970095 (April 23, 1998); Kroeten v. United States Postal Service, EEOC Request No. 05940451 (Dec. 22, 1994).
In the instant case, we find that Complainant is clearly refusing to be interviewed or to provide an affidavit. Further, his email provides sufficient evidence to support a conclusion that he purposely engaged in contumacious conduct. Additionally, we find that there was insufficient information in the record to have permitted the Agency to have continued the investigation (by collecting evidence from management witnesses) without Complainant's affidavit to permit an adjudication on the merits. A review of the record indicates that Complainant did not provide specific dates of the incidents supporting his hostile work environment claim, and has not indicated how he was treated differently from other similarly situated employees and subjected to a hostile work environment.. This is insufficient information to permit management witnesses to respond to complainant's allegations. See Hearl v. United States Postal Service, EEOC Appeal No. 0120082505 (July 28, 2008).
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 10, 2014
__________________
Date
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0120140889
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120140889