Miranda Moore, Complainant,v.Elaine Chao, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionNov 24, 2004
01A43328_r (E.E.O.C. Nov. 24, 2004)

01A43328_r

11-24-2004

Miranda Moore, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.


Miranda Moore v. Department of Labor

01A43328

November 24, 2004

.

Miranda Moore,

Complainant,

v.

Elaine Chao,

Secretary,

Department of Labor,

Agency.

Appeal No. 01A43328

Agency No. 03-04-148

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated February 9, 2004, dismissing her complaint of unlawful

employment discrimination. In her complaint, complainant alleged that

she was subjected to discrimination on the basis of sex (female) when

she was subjected to a hostile work environment and sexual harassment

since approximately July 2002.

The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(7),

for failure to cooperate. 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,

provided that the request included a notice of the proposed dismissal.

The Commission finds that the agency's dismissal of the complaint for

failure to cooperate was proper. The record contains a copy of a letter

dated January 13, 2004, which was received by complainant on January

14, 2004. The January 13, 2004 letter confirmed the January 12, 2004

teleconference between an EEO Investigator and complainant that the

agency had granted complainant a 15-day extension to submit a completed

affidavit. Additionally, the letter stated that the completed affidavit

was due no later than January 27, 2004. Moreover, the letter stated

that failure to submit a completed affidavit within the �prescribed

15 days� may result in the agency closing complainant's complaint for

failure to submit requested information.

There is no indication that complainant submitted a completed affidavit

to the agency. Complainant does not assert that she submitted an

affidavit in response to the January 13, 2004 agency request. On appeal,

complainant asserts: �I have been engaged in another legal matter that

arose unexpectedly in fall 2003. Due to the severity and critical nature

of this surprise situation, the majority of my time and concentration

had been directed into dealing with this case.� The Commission finds

this excuse to be an unacceptable reason for not cooperating with the

agency in processing her case. Therefore, the Commission finds that the

agency's decision dismissing the complaint was proper.

The agency's decision to dismiss the complaint is AFFIRMED.

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

November 24, 2004

__________________

Date