01A34760
06-16-2004
Lori J. Miller, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
Lori J. Miller v. Department of the Navy
01A34760
June 16, 2004
.
Lori J. Miller,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Appeal No. 01A34760
Agency No. 03-67399-003
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated July 9, 2003, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the basis of disability (alleged
impairment of hearing loss) and in reprisal for prior protected activity
(contacting her Congressman about worker's compensation claim) when:
Management officials failed to accommodate her when she requested to be
moved from a noisy environment, which was making her hearing loss worse;
The agency failed to assist her with speaking to the Office of Worker's
Compensation (OWCP) about her claim because she requested intervention
by her Congressman; and,
The complainant was forced to take early retirement and the agency failed
to provide her with adequate information about disability retirement.
The agency dismissed complainant's complaint for failure to cooperate
pursuant to 29 C.F.R. � 1614.107(a)(7). In addition to the issues listed
above, on appeal, complainant contends that she was subjected to continual
harassment stemming from her hearing loss and the complaints she made
regarding her work environment. After consideration of these claims,
we affirm the agency's dismissal.
The regulation set forth at 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 15 days of its receipt or the complainant's response
does not address the agency's request. Furthermore, a complainant's
failure to provide a clear statement setting forth the issues giving rise
to a complaint of discrimination is sufficient to support a finding that
the complainant has failed to cooperate. See Sobczak v. Environmental
Protection Agency, EEOC Request No. 05971014 (November 30, 1998)
(citing Davidson v. Department of Commerce, EEOC Request No. 05920602
(January 7, 1993).
Under the circumstances in this case, we find that the agency's
dismissal was proper.<1> The record indicates that on May 9, 2003,
complainant received a memorandum from the agency requesting that she
furnish additional information, including specific dates and further
descriptive information, to support her formal complaint. The request
clearly indicated that failure to do so within 15 days would result in
dismissal of her complaint. It is undisputed that complainant failed to
provide the requisite information, instead referring the agency to the
EEO Counselor. The counselor, however, lacked such information, claiming
it was not given during her meetings with complainant. While complainant
acknowledged that the EEO Counselor's Report was deficient in information,
she insisted that the information was provided during their meetings
together, and thereby refused to disclose any additional facts. The
agency then issued a second request for the information with the same
15 day time limit, which was received by complainant on May 27, 2003.
Complainant responded, albeit 9 days after expiration of the requisite
time frame, again refusing to provide information. The agency then
dismissed complainant's complaint for failure to cooperate.
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). Because the EEO
Counselor's report was deficient, regardless of who was responsible
for those deficiencies, further basic information was necessary from
the complainant to enable the agency to investigate the allegations.<2>
Therefore, sufficient information for adjudicating the merits of the
claims raised was not available due to complainant's repeated failure
to cooperate. Thus, we affirm the dismissal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 (S0900)
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 (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
June 16, 2004
__________________
Date
1Since we are affirming the agency's dismissal
of complainant's complaint on the grounds of failure to cooperate
pursuant to 29 C.F.R. � 1614.107(a)(7), we will not address the agency's
alternative ground for dismissal, i.e., dismissal of allegation 2 for
raising a collateral attack on an OWCP claim, pursuant to 29 C.F.R. �
1614.107(a)(1).
2It should be noted that the information requested by the agency
eventually was provided in the Brief in Support of Complainant's Appeal.
However, this does not excuse complainant from failing to provide it to
the agency when requested.