01970665
03-25-1999
James Conner, Jr., Appellant, v. William S. Cohen, Secretary, Department of Defense, Agency.
James Conner, Jr., )
Appellant, )
)
v. ) Appeal No. 01970665
) Agency No. DFAS-HQ-96-002
William S. Cohen, )
Secretary, )
Department of Defense, )
Agency. )
______________________________)
DECISION
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(g) for failure to prosecute. Appellant alleged that he was
discriminated against on the bases of race (African-American), color
(brown), sex (male), and age (DOB: 8/25/40), when: (1) his supervisor
distributed a list of his work history to other managers at a staff
meeting on July 11, 1994, of which he became aware during the week of
September 16, 1995; (2) his supervisor gave him a performance letter
dated June 16, 1995; (3) his supervisor gave him a �Fully Successful�
on his April, 1995, performance rating, on June 16, 1995; and (4) on or
around September 13, 1995, appellant became aware that he was denied
the opportunity to apply for a GS-12 Complaints Manager and a GS-12
Affirmative Employment Manager.
The record reveals that during the relevant time appellant was employed
as a GS-0260-11 EEO Specialist at the agency's Defense Finance and
Accounting Service, Columbus, Ohio. Believing he was a victim of
discrimination, appellant sought EEO Counseling and, subsequently,
filed a formal complaint on December 20, 1995. On or around January 18,
1996, appellant supplemented his complaint with a letter setting forth
thirty-six separate allegations of discrimination. After a series of
correspondence between agency EEO officials and appellant's counsel, the
agency ultimately issued a letter on May 20, 1996, which accepted for
investigation the above-referenced issues, and dismissed the remainder
of appellant's allegations on a variety of procedural grounds.<1>
The investigation was completed on August 8, 1996, and a notice of
appellant's right to request a hearing before an EEOC Administrative
Judge (AJ) or request a final agency decision (FAD) was mailed to,
and received by, appellant on August 14, 1996, and appellant's counsel
on August 15, 1996. Appellant suffered a heart attack on or around
September 8, 1996, which was approximately one week prior to the thirty
day deadline to elect a hearing before an AJ or request a FAD set forth
in 29 C.F.R. � 1614.108(f).<2> When neither appellant nor his counsel
responded within the thirty day period, the agency mailed a letter to
appellant and his counsel requesting an explanation as to why did not
receive a response pursuant to 29 C.F.R. � 1614.108(f). Agency records
reveal that appellant did not acknowledge receipt of this letter until
October 9, 1996, and that appellant's counsel sent a facsimile to the
agency on September 25, 1995, the date appellant's counsel received
the letter. In this facsimile, appellant's counsel explained that his
client had suffered a heart attack, and he requested an extension until
October 25, 1996, for appellant to render a decision. On October 3,
1996, the agency dismissed appellant's complaint pursuant to 29 C.F.R. �
1614.107(g), for failure to prosecute, noting that appellant failed to
timely respond to the agency's correspondence. The agency concluded that
because appellant was working between August 15, 1995, and September 7,
1995, he could have exercised his rights under 29 C.F.R. � 1614.108(f)
prior to becoming ill, and that dismissal under 29 C.F.R. � 1614.107(g)
was proper under the circumstances.
Subsequently, on March 31, 1998, the Commission addressed appellant's
appeal of those allegations which were dismissed in the agency's letter
of partial acceptance and partial dismissal dated May 20, 1996. In our
decision, we affirmed the dismissal of allegations 14, 15, 31, 33,
and 34 of appellant's formal complaint, and reversed the dismissal of
allegations 2, 10 through 13, 18 through 30, 32, 35 and 36. See Conner
v. Department of Defense, EEOC Appeal No. 01965093 (March 31, 1998).
EEOC Regulation 29 C.F.R. � 1614.107(g) provides that an agency may
dismiss an allegation or complaint for failure to prosecute. The agency
must provide appellant with a notice of proposed dismissal that requests
that he either submit certain information or otherwise proceed with
the complaint. When appellant fails to satisfy the agency's request
within fifteen (15) calendar days of receiving the notice, the agency
may dismiss the allegation or complaint. However, the regulation
also provides that instead of dismissing for failure to prosecute, the
agency may adjudicate the allegation or complaint if the record contains
sufficient information to do so. The Commission has previously held that
only where the complainant has engaged in delaying or contumacious conduct
and the record is insufficient to permit adjudication will the Commission
allow a complaint to be canceled for failure to prosecute. See Rivera
v. Department of the Navy, EEOC Request No. 05940927 (December 8, 1995).
Here, appellant's failure to request a hearing or a FAD was not due
to �delaying or contumacious conduct.� To the contrary, appellant's
medical condition prevented him from making a timely election pursuant
to 29 C.F.R. � 1614.108(f), and despite such notice to the agency via
a facsimile dated September 25, 1996, the agency nonetheless dismissed
appellant's complaint even though the agency had before it a completed
investigative file.<3> In this respect, we further note that the
numerous correspondence between the agency EEO Representative (Ms. S.) and
appellant's counsel evidence a degree of animosity between the parties.
Without addressing whether such animosity may have been a motivating
factor in the agency's decision to issue a FAD, as stated above,
without addressing the merits of appellant's complaint, we remind both
parties of their obligation to uphold the sanctity of the EEO process,
and to represent their respective parties in order to facilitate, and not
interfere, with the adjudication of appellant's EEO complaint. Finally,
we note that given the time delay resulting from the instant appeal, and
as appellant's other allegations were remanded to the agency in or around
April of 1998, the agency shall, to the extent feasible, consolidate
the issues set forth in this decision and our previous decision, and if
not already complete, expedite the processing of appellant's complaint
allegations. Accordingly, we VACATE the FAD and REMAND the allegations
to the agency in accordance with this decision and the ORDER below.
ORDER
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 supplement exhibits B and U of the investigative file
to ensure that the EEO Counselor's Report and the whole of appellant's
performance letter is contained in the investigative file. Thereafter,
the agency shall issue to appellant a copy of the completed investigative
file.
The agency shall, to the extent feasible, consolidate the issues
set forth herein, with the remaining issues, as set forth in the
Commission's prior decision in Conner v. Department of Defense, EEOC
Appeal No. 01965093 (March 31, 1998). Thereafter, the agency shall
complete its investigation, if not already completed, within sixty (60)
days of the date this decision becomes final. Upon completion of its
investigation, the agency shall notify appellant of the appropriate
rights to request a hearing before an EEOC Administrative Judge, or to
request a final agency decision, 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 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:
March 25, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations1 The Commission notes
that issue (1) corresponds with allegations four
through nine of appellant's formal complaint,
issue (2) corresponds with allegations one and
seventeen, issue (3) corresponds with allegation
number sixteen, and issue (4) corresponds with
allegation number three.
2 The Commission notes that while the record does not contain a note
from appellant's physician, the agency did not contest the veracity
of the representation by appellant's counsel that appellant suffered a
heart attack, and the agency's time records indicate that he commenced
sick leave on or around September 8, 1996.
3 We note that exhibit U of the investigative file, appellant's
performance letter, does not contain pages one through six of the letter.
Additionally, exhibit B, the EEO Counselor's Report, is not contained
in the investigative file. On remand, the agency shall supplement the
investigative file accordingly.