01a02974
06-22-2000
Amani Maat-Kheru, Complainant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Amani Maat-Kheru v. Department of the Navy
01A02974
June 22, 2000
Amani Maat-Kheru, )
Complainant, )
)
v. ) Appeal No. 01A02974
Richard J. Danzig, ) Agency Nos. 96-62383-010
Secretary, ) 97-62383-002
Department of the Navy, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated February 29, 2000, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of race (African American) and in reprisal for prior EEO activity when:
On May 16, 1996, complainant's supervisor rated his performance as
unsatisfactory;
Complainant was denied training opportunities for advancement to Third
Mate; and
On November 23, 1996, complainant's performance was rated as
unsatisfactory.
Following the filing of his formal complaint, complainant requested a
hearing before an Administrative Judge (AJ).<2>
On December 6, 1999, the AJ issued a Notice/Order notifying complainant
that a pre-hearing/status conference originally scheduled for December
10, 1999, was re-scheduled to January 5, 2000. The AJ noted that in
the course of attempting to reschedule the conference, he was unable
to reach complainant by telephone despite using the numbers provided by
complainant. The Notice/Order stated in pertinent part that complainant
is hereby ordered:
to contact [the AJ] in writing with the assurance that he plans to
proceed in this matter;
provide a telephone number or contact point to [the AJ] and to the
agency; and
appear at the status conference on January 5, 2000.
The Order further notified complainant that failure to cooperate with
this order will result in dismissal of the complaint.
By recommended decision issued January 5, 2000, the AJ dismissed the
complaint for failure to cooperate, stating that since complainant
was notified of and failed to respond to the proposed dismissal of his
complaint, the complaint was dismissed pursuant to 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter referred to as 29 C.F.R. ��
1614.107(a)(6), 1614.107(a)(7)). By final decision dated February 29,
2000, the agency adopted the AJ's findings and conclusions.
The regulation set forth at 29 C.F.R. � 1614.107(a)(6) provides for
dismissal of a complaint where the complainant cannot be located, provided
that reasonable efforts have been made to locate the complainant and
the complainant has not responded within fifteen (15) days to a notice
of proposed dismissal sent to his last know address. In addition,
the regulation set forth at 29 C.F.R. � 1614.107(a)(7) provides for
the dismissal of a complaint where complainant has been provided 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 request, provided that the request included a notice of
the proposed dismissal.
Based on the foregoing procedural history, we find that complainant's
complaint was properly dismissed for failure to cooperate. Equal
Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 7-8 (November 9, 1999) provides in pertinent part:
The Administrative Judge may dismiss complaints within his/her
jurisdiction pursuant to � 1614.107(a) on his/her own initiative, after
notice to the parties, or upon an agency's motion to dismiss a complaint.
(See � 1614.109(b)).
In the present case, the record reveals that the AJ sent complainant
a notice of proposed dismissal of his complaint on December 10, 1999,
ordering him to respond to the notice and informing him that failure to
appear at the pre-hearing/status conference on January 5, 2000, would
result in the dismissal of his complaint. The record further reveals that
complainant failed to respond within 15 days to the notice of proposed
dismissal and failed to appear at the January 5, 2000 pre-hearing/status
conference. Since the AJ made reasonable efforts to locate complainant
and since complainant did not respond within fifteen (15) days to a notice
of proposed dismissal sent to his last known address, the complaint was
properly dismissed for failure to cooperate.
Accordingly, the agency's final decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
June 22, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date
1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.
2Complainant originally filed two formal complaints which were
consolidated by the agency.