01996170_r
05-02-2001
Robert Fassett, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Robert Fassett v. Department of Veterans Affairs
01996170
May 2, 2001
.
Robert Fassett,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01996170
DECISION
Upon review, the Commission finds that complainant's complaint is
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO contact. Complainant alleged that he was discriminated against on
the basis of reprisal for prior EEO activity when, on December 2, 1997,
he was terminated from his position.
The record indicates that, after complainant raised the issue of his
termination prior to a hearing for Agency Case Number 98-0369 (EEOC
Hearing No. 150-98-8367X), the parties agreed to hold that case in
abeyance to enable possible consolidation of the case with complainant's
related termination claim. As part of the �Agreement to Hold Case
in Abeyance,� the parties agreed that complainant would make initial
contact with an EEO Counselor concerning his termination claim within
30 days of the signing of the agreement, which was fully executed on
February 17, 1999. After complainant contacted a Counselor on March
25, 1999 (and subsequently filed his formal complaint on May 21, 1999),
the agency sent a June 3, 1999 letter to complainant's representative
requesting an explanation for complainant's untimely EEO contact, and
for the untimely filing of his formal complaint. The letter advised
complainant that he must respond within 15 days of his receipt of the
letter, or face possible dismissal of the complaint. On June 28, 1999,
complainant's attorney responded to the letter by explaining that some
attempt had been made at contacting a Counselor, but circumstances and
complainant's �lack of knowledge� caused him to delay his EEO Counselor
contact, and that he was out of state at the time the Notice of Right
to File a Discrimination Complaint was received at his residence.
On July 7, 1999, the agency, citing receipt of the June 3, 1999 letter by
complainant's attorney on June 6, 1999, dismissed the complaint pursuant
to 29 C.F.R. � 1614.107(a)(7), for failure to respond to its request
for relevant information within the prescribed time limit.
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 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
pursuant to 29 C.F.R. � 1614.107(a)(7) was improper. The record indicates
that, although complainant did not respond to the agency's request within
15 days, complainant's attorney did respond one week later, prior to the
issuance of the agency's dismissal. Further, the response appears to
have provided the agency with the information sought rendering the record
sufficient for further processing. Accordingly, we find that dismissal on
the grounds of failure to prosecute was improper and is hereby REVERSED.
In view of the �Agreement to Hold Case in Abeyance,� the case is remanded
for further processing in accordance with that agreement and the Order
below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0900)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant 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. �� 1614.407 and 1614.408. 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
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
May 2, 2001
__________________
Date