01981943_r
06-29-1999
Earl B. Hobbs, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Earl B. Hobbs, )
Appellant, )
)
v. ) Appeal No. 01981943
) Agency No. 5-94-5137R
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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. The final agency decision was issued on September
23, 1997. The appeal was postmarked January 3, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.<1>
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
appellant's complaint for failure to cooperate.
BACKGROUND
Appellant initiated contact with an EEO Counselor on July 8, 1993.
On September 27, 1993, appellant filed a formal EEO complaint wherein
he alleged that he had been discriminated against on the bases of his
race/color (white) when:
1. The Air Traffic Manager and a Security Division Manager entered
into an agreement, whether overtly or covertly, whether knowingly or
unknowingly, to conspire to harass and intimidate him because of his
legal activities on behalf of the Coalition of Federal White Aviation
Workers (CFWAE).
2. The Air Traffic Manager and a Security Division Manager continued
to harass him based on activities on behalf of CFWAE.
3. The Air Traffic Manager consistently demonstrated racist attitudes
regarding his expressed political and social convictions. The Air
Traffic Manager's attitudes and actions constituted a gross abuse of
authority and position.
The record reflects that appellant and the agency engaged in a series
of correspondence concerning the issues and investigation. On several
occasions, appellant objected to the framing of the issues. Appellant
also insisted that the EEO Investigator be a white male, close to his
age and educational level, and native to his home area. In a letter
dated February 10, 1995, appellant stated that he would no longer accept
telephone calls regarding this matter, and that he was divesting himself
of any responsibility to collect certified mail concerning this matter.
In a prior decision, the agency dismissed appellant's complaint on the
grounds of failure to cooperate. The agency noted that appellant's
response to its letter of January 31, 1995, failed to notify the agency
of his intent to cooperate with the investigator in the investigation of
the complaint. Thereafter, appellant filed an appeal with the Commission.
In Earl B. Hobbs v. Department of Transportation, EEOC Appeal No. 01956745
(September 10, 1996), the Commission vacated the agency's dismissal
because the agency failed to meet its burden of showing that appellant
engaged in contumacious behavior, or that it lacked sufficient information
to adjudicate the complaint. The Commission remanded the matter for
further processing. The Commission noted that appellant helped delay the
investigation of his complaint by placing unwarranted obstructions and
preconditions such as the manner in which the agency communicated with
him and the nature of the EEO Investigator. Further, the Commission
found that appellant contributed to the delay in the processing of his
complaint by raising only generally vague objections to the agency's
framing of his issues. The Commission also found that the agency failed
to address two additional allegations raised by appellant. The Commission
ordered the agency to make EEO counseling available to appellant with
regard to allegations (4) that he was constructively discharged and (5)
that the Air Traffic Manager harassed his representative by requiring
that she use annual leave.
By letter dated March 12, 1997, the EEO Investigator sent appellant
interrogatories with regard to allegations 1-3 of his complaint.
By letter dated March 13, 1997, the agency advised appellant of his
right to EEO counseling concerning allegations 4-5 as well as whom
to contact to obtain EEO counseling. By letter dated March 21, 1997,
appellant informed the agency that the contact person for counseling
was unacceptable and that an EEO Counselor would have to contact him.
Appellant also declined to complete the interrogatories. By letter
dated May 8, 1997, the agency notified appellant that he must initiate
contact with the EEO Counselor. The agency also requested that appellant
complete the interrogatories within 15 days of his receipt of the letter.
Appellant was advised that failure to cooperate in the investigation would
result in a dismissal of his complaint. By letter dated May 29, 1997,
appellant responded to the agency's May 8, 1997 letter, stating that he
would not accept any EEO Counselor other than a white, non-Hispanic male
Counselor. With regard to the interrogatories, appellant asserted that
he would not provide any statement until he had a chance to meet with
the EEO Investigator to determine the attitude, approach, and factual
independence of the Investigator.
In its final decision, the agency determined that appellant failed to
cooperate in the investigation of allegations 1-3 and appellant refused to
initiate EEO counseling concerning allegations 4-5. The agency stated
that appellant's response dated May 29, 1997, expressed appellant's
intent not to provide the requested relevant information, initiate
contact with an EEO Counselor, or otherwise proceed with the processing
of his complaint. The agency further determined that the complaint can
not be adjudicated because sufficient information for that purpose is
not available.
On appeal, appellant maintains that he has complied with the duties
imposed on him, but the agency has not complied in a timely manner with
any requirements placed upon it. Appellant argues that the agency has
not conducted an investigation and he has not been afforded an opportunity
to present his evidence.
In response, the agency asserts that it twice sent appellant written
interrogatories and appellant refused to complete and return them.
The agency further asserts that appellant's demands as to the nature of
the EEO Investigator are unreasonable and untenable. With regard to the
allegations that were remanded for EEO counseling, the agency states that
appellant has refused to initiate EEO counseling. The agency states
that it made EEO counseling available to appellant on two occasions,
but that appellant demanded that the EEO Counselor contact him.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(g) provides that the agency shall
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, 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.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
The Commission notes that an agency's decision to invoke the provisions
of 29 C.F.R. �1614.107(g) should be made by the agency only when there
is a clear record of delay or contumacious conduct by the complainant.
Connolly v. Papachristid Shipping Ltd., et al., 504 F.2d 917 (5th
Cir. 1974). This is because implicit in the scheme of attempted control
of the evil of discrimination by administrative and judicial machinery
is a degree of cooperation by the complaining party. Jordan v. United
States, 522 F.2d 1128 (8th Cir. 1975). Accordingly, the obligation
to informally and expeditiously resolve complaints is imposed on both
parties.
Further, the Commission has held that, as a general rule, an agency should
not cancel a complaint when it has sufficient information on which to
base an adjudication. See George Ross v. United States Postal Service,
EEOC Request No. 0590693 (August 17, 1990); Pamela A. Brinson v. United
States Postal Service, EEOC Request No. 05900193 (April 12, 1990). It is
only in cases where the complainant has engaged in delay or contumacious
conduct and the record is insufficient to permit adjudication that
the Commission has allowed a complaint to be canceled for failure to
prosecute (cooperate). See Arturoc Raz v. United States Postal Service,
EEOC Request No. 05890177 (June 14, 1989).
Based on the record herein, we find that the agency properly dismissed
appellant's complaint for failure to cooperate. The record is replete
with examples of how appellant has not cooperated in the investigation
of his complaint. Appellant's failure to complete the interrogatories
demonstrates contumacious conduct. His requirement that the EEO
Investigator meet a certain profile is unreasonable. Appellant's demand
that the EEO Counselor contact him to initiate the counseling process
with regard to allegations 4-5 demonstrates a lack of due diligence in
pursuit of the complaint. Appellant's actions have clearly impeded the
processing and investigation of his complaint. Accordingly, the agency's
decision to dismiss appellant's complaint on the grounds of failure to
cooperate was proper and it is hereby AFFIRMED.
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 (S0993)
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. 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:
June 29, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The record does not establish when appellant received the final agency
decision. Absent evidence to the contrary, we find that the instant
appeal was timely filed.