01a00069
03-14-2001
Roger Curry, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Roger Curry v. Department of Veterans Affairs
01A00069
March 14, 2001
.
Roger Curry,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A00069
Agency No. 993189
DECISION
Roger Curry (complainant) filed a timely appeal with this Commission from
an agency's decision dated September 24, 1999, dismissing his complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. In his complaint, complainant alleged that he was subjected to
retaliation for prior EEO activity (unspecified) when he was harassed
when his duties were changed based on a memo dated December 17, 1999.
The agency dismissed the complaint pursuant to EEOC Regulation �
1614.107(a)(1), noting that it raised the same claim as a complaint
then pending before an Administrative Judge (AJ). In the alternative,
the agency dismissed the complaint pursuant to EEOC Regulation �
1614.107(a)(7), for failure to provide relevant information requested
by the agency. Specifically, the agency noted that complainant failed
to respond to its August 12, 1999 request for additional information
about his harassment claim.
Turning first to the agency's finding that the subject complaint states
the same claim that was pending before an AJ, although the agency
indicated that complainant raised the same issue in Agency No. 98-0783,
the record does not include any documentation to establish what claims
were raised in the prior complaint. An agency is required to substantiate
the bases for its final decision. See Marshall v. Department of the Navy,
EEOC Request No. 05910685 (September 6, 1991). Here, it has failed to
do so.
Similarly, although the agency also justified its dismissal of the
complaint on the grounds that complainant failed to respond to its request
for information, Commission regulations establish that an agency may not
dismiss on this basis when the record includes sufficient information to
issue a decision. See Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614, (EEO-MD-110), as revised, November 9, 1999,
at 5-24. The Commission has also held that the regulation is applicable
only in cases where there is a clear record of delay or contumacious
conduct by the complainant. See id; see also Anderson v. United States
Postal Service, EEOC Request No. 05940850 (February 24, 1995).
In the case herein, while there is not sufficient information in the
record to make a decision on the merits of complainant's claim, there is
sufficient information to conclude that complainant has stated a claim.
The agency asserted that its request for additional information was
based on the fact that it could not decipher what injury complainant was
alleging from the information provided on his formal complaint form.
On the form, complainant checked the box labeled �harassment� and
wrote in �memo dated 12/17/99.� While this, in itself, may be unclear,
our review of the information available to the agency when it made the
request for additional information, such as the Counselor's Report,
establishes that complainant was alleging that he was subjected to
retaliation/harassment when his job duties were changed based on a
December 17, 1999 memo. The agency's request for information as to
how complainant suffered a personal injury was, therefore, unnecessary.
Complainant's complaint states a claim of discrimination and should have
been accepted for investigation. Complainant's failure to restate
information which he previously had provided is an insufficient basis
for dismissal.
Accordingly, after a careful review of the record, we find that the
agency's dismissal was improper and the matter is hereby REMANDED for
further processing in compliance with this decision and the ORDER below.
ORDER (E0900)
The agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claim 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
March 14, 2001
Date