01a02474
07-24-2000
Brett M. Whittle, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Brett M. Whittle, )
Complainant, )
)
v. ) Appeal No. 01A02474
) Agency No. 98-112
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
____________________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed complainant's complaint for failure to cooperate.<1>
Complainant alleged that he was subjected to discrimination on the
bases of race (African-Mexican-American), color (brown), sex (male),
age, and in reprisal for prior EEO activity when:
Complainant was denied advancement to journeyman grade, pay and
promotional opportunities by the promotion of other employees through
accretion of duties and planned management actions;
Complainant was denied career-enhancing training;
Complainant was denied an Individual Development Plan (IDP) when members
outside the protected class were given an IDP;
Complainant was denied on-the-job career-enhancing projects;
Complainant was denied access to mentors; and
Complainant was subjected harassment by his immediate supervisor and
chain-of-command concerning leave requests, employee representation
duties, labor affiliation, grievance issues, congressional inquiries,
and EEO complaints.
These claims were the subject of a prior appeal, EEOC Appeal No. 01986594.
The Commission remanded an agency decision to dismiss the claims for
failure to cooperate, because complainant clarified his claims as
requested by the agency. See Whittle v. Department of Defense, EEOC
Appeal No. 01986594 (October 25, 1999). Nonetheless, the Commission
found insufficient information to adjudicate the complaint; and we ordered
the agency review its own files and allow complainant an opportunity to
provide incident dates.
By letter dated December 3, 1999, the agency requested that complainant
provide the date on which his claims occurred. The letter informed
complainant that his failure to respond could result in dismissal of
his complaint. Complainant responded by phone on December 9, 1999,
explaining that he would be on vacation in �the Hamptons� for the
entire month of December, and therefore would be unable to respond
to the agency's request. The agency sent complainant two separate
correspondence, dated December 10, 1999 and December 16, 1999, informing
complainant that his request for an extension would not be granted.
In its January 10, 2000 decision, the agency dismissed the claims for
failure to cooperate. The agency noted that it was unable to determine
the dates from its own files, and complainant failed to respond to
requests for information. On appeal, complainant argues that the agency
purposefully waited until December to request information, when �most
federal employees schedule their �use or lose' leave. . . .�
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited as 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.
As noted in our previous decision, the file lacked sufficient information
for further processing. Complainant's vacation does not justify tolling
the time limitation. Accordingly, the agency's dismissal 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:
July 24, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.