Edwin C. Porter, Jr., Complainant,v.Elaine Chao, Secretary, Department of Labor, Agency.

Equal Employment Opportunity CommissionDec 17, 2001
01A14968_r (E.E.O.C. Dec. 17, 2001)

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.