01983072
05-28-1999
Constantine J. Economou, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Constantine J. Economou v. Department of the Army
01983072
May 28, 1999
Constantine J. Economou, )
Appellant, )
)
v. ) Appeal No. 01983072
) Agency No. AUFS FO 9709H0260
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated February 19, 1998, which the agency issued pursuant to
EEOC Regulation 29 C.F.R. �1614.107(a) and (b). The Commission accepts
the appellant's appeal in accordance with EEOC Order No. 960, as amended.
The final agency decision defined five allegations raised by the
appellant's October 4, 1997 complaint. The agency dismissed allegations
2 (reassignment to a non-supervisor position with unspecified duties)
on the ground that it was an integral part of the proposed removal
action (allegation 3). The agency dismissed allegations 2 and 3 on the
ground that they would be investigated in a subsequently filed complaint
regarding the appellant's removal. The agency dismissed allegations 1,
4, and 5 on grounds that they were not raised with the EEO Counselor
and that they lacked specificity even though the agency had requested
additional information from the appellant's attorney.
On appeal, the appellant contends that allegations 2 and 3 involve
separate actions, that he discussed allegation 5 with the Counselor,
and that neither he nor his attorney were asked to provide additional
information.
In response, the agency submits copies of letters wherein it requested
additional information from the appellant's attorney. The agency also
contends that it properly dismissed allegations 1, 4, and 5 pursuant
to 29 C.F.R. �1614.107(g) because the appellant failed to cooperate by
submitting requested information. The agency also submits a copy of a
letter wherein the agency accepted the appellant's removal allegation
for investigation. The letter does not reference allegation 2 from this
complaint.
After a review of the record, the Commission finds that there is no
evidence that the appellant failed to raise allegations 1, 4, and 5
with the Counselor. The Counselor's Report includes a space wherein the
Counselor should have summarized the appellant's allegations. Therein,
the Counselor wrote "see attached." However, the record does not contain
the referenced attachment. Nor does the record contain an affidavit from
the Counselor describing the issues that were raised by the appellant.
Therefore, the Commission finds that the agency's dismissal of allegations
1, 4, and 5 on ground that they were not raised with the EEO Counselor
is not supported by the record.
The Commission also finds that a dismissal of allegations 1, 4, and 5 for
failure to cooperate is not supported by the record. EEOC Regulation
29 C.F.R. �1614.107(g) requires an agency to dismiss a complaint or a
portion of a complaint where the agency has provided the complainant
with a written request to provide relevant information or otherwise
proceed with the complaint, the request included a notice of the proposed
dismissal, and the complainant failed to respond to the request within
15 days of its receipt or the complainant's response does not address the
agency's request. The regulation further specifies instead of dismissing
for failure to cooperate, the agency may adjudicate the complaint if
sufficient information for that purpose is available. By its language,
29 C.F.R. �1614.107(g) applies only to requests for relevant information.
The Commission has long held that, as a general rule, an agency should
not dismiss a complaint where it has sufficient information on which
to base an adjudication. See Ross v. United States Postal Service, EEOC
Request No. 05900693 (August 17, 1990). The Commission specifically has
found that the regulation is not applicable where there is sufficient
information in the record to determine whether to accept the complaint's
allegations without any further input from the appellant. Breese
v. Department of the Army, EEOC Request No. 05940800 (May 25, 1995);
and Hart v. Department of Veterans Affairs, EEOC Request No. 05930591
(December 23, 1993). The Commission also has held that the regulation
is applicable only in cases where there is a clear record of delay or
contumacious conduct by the complainant. Anderson v. United States
Postal Service, EEOC Request No. 05940850 (February 24, 1995). Here,
the agency failed to notify the appellant's attorney that it intended
to dismiss the appellant's complaint if the requested information were
not timely provided. The agency also requested information it did not
need in order to determine whether to process the complaint. Finally,
the record is devoid of any evidence of contumacious conduct by the
appellant or his attorney.
The Commission also finds that the agency improperly dismissed allegation
2 on the ground that it had been subsumed in the appellant's removal
complaint. It cannot be determined prior to an investigation whether
allegation 2 was part and parcel of the proposed removal. The Commission
notes in this regard that the record does not contain a copy of the
proposed removal letter or of any other agency document which demonstrates
that the reassignment was inextricably linked to the proposed removal.
The Commission finds that the agency should combine allegations 2
(reassignment to a non-supervisory position with unspecified duties) and
allegation 4 (removal of the appellant's authority to supervisor Area
Offices of the Construction Division) if the investigation determines
that they refer to the same agency action. The Commission finds that
allegations 1 and 5 should be consolidated and treated as a claim that
the agency subjected the appellant to a hostile work environment based
on his national origin and in retaliation for his prior EEO activity.
The agency should investigate allegations 2 and 4 as independent claim(s)
and as part of the appellant's hostile work environment claim.
As to allegation 3, the Commission finds that the agency correctly
treated the appellant's proposed removal as subsumed in the removal
action that is the subject of a separate complaint.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of allegation 3; REVERSES the agency's dismissal of allegations
1, 2, 4, and 5; and REMANDS the appellant's assignment allegation(s)
(allegations 2 and 4) and his hostile work environment claim (allegations
1, 2, 4, and 5) to the agency for processing as ORDERED below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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� (Supp. V 1993).
If the appellant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 (Z1092)
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:
May 28, 1999 Carlton M. Hadden
Date Acting Director
Office of Federal Operations