01A14968_r
12-17-2001
Edwin C. Porter, Jr., Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Edwin C. Porter, Jr. v. Department of Labor
01A14968
December 17, 2001
.
Edwin C. Porter, Jr.,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A14968
Agency No. 0-08-049
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 17, 2000, 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 discrimination
on the basis of sex when the office rotated him and five other male
employees from the Strategic Team to the Response Team, although no
female employees were similarly rotated.
The agency dismissed complainant's claim for failure to cooperate and
failure to state a claim. Specifically, the agency found that complainant
failed to timely respond to its June 9, 2000 request that he explain
how his claim rendered him aggrieved under EEOC Regulations.
EEOC regulations at 29 C.F.R. � 1614.107(a)(7) provide 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.
The Commission has held that the regulation is applicable, however, only
in cases where there is a clear record of delay or contumacious conduct
by complainant. See Card v. United States Postal Service, EEOC Request
No. 05970095 (April 23, 1998); Anderson v. United States Postal Service,
EEOC Request No. 05940850 (February 24, 1995).
The Commission determines that the agency's dismissal was improper.
The agency notes in its final decision that, by letter received April 7,
2000, it requested that complainant provide an explanation of how his
claim renders him an �aggrieved employee.� After complainant responded
to the agency's request on April 27, 2000, the agency further requested
that complainant �explain more clearly the harmful effects that the
team rotation [had] on [his] employment status.� The record reveals
that in his initial response, complainant explained that his rotation
to the Response Team rendered him aggrieved because the Response Team
carries a considerably heavier workload than the Strategic Team and
offers fewer opportunities for professional development. Therefore,
we are not persuaded that complainant engaged in uncooperative and
contumacious conduct that merits a dismissal for failure to cooperate.
Further the Commission determines that the record reveals that
complainant's complaint articulates a justiciable claim. The only proper
questions in determining whether a claim is within the purview of the
EEO process are (1) whether the complainant is an aggrieved employee and
(2) whether he has alleged employment discrimination covered by the
EEO statutes. An employee is "aggrieved" if he has suffered direct
and personal deprivation at the hands of the employer. See Hobson
v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990).
Here, complainant alleged that he was improperly rotated from one agency
team to another. Complainant's claim is sufficient to render him an
aggrieved employee. Because complainant has alleged that the adverse
action was based on sex, he has raised a claim within the purview of
the EEOC regulations.
Consequently, we find that the agency improperly dismissed complainant's
complaint for failure to cooperate and failure to state a claim.
Accordingly, the agency's final decision is REVERSED, and the complaint
is REMANDED to the agency for further processing in accordance with the
ORDER below.<1>
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims 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 (K0501)
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)
(1994 & Supp. IV 1999). 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 (M0701)
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
December 17, 2001
__________________
Date
1 Finally, the Commission notes that on appeal, the agency argues that
complainant untimely filed the instant appeal. However, the record
contains no evidence that establishes the date that complainant received
the final agency decision. Consequently, we determine that complainant's
appeal is timely filed.