01990253_r
09-17-1999
Iris S. Solomon, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Iris S. Solomon, )
Appellant, )
)
v. ) Appeal No. 01990253
) Agency No. 98-62980-003
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
______________________________)
DECISION
On October 15, 1998, appellant, a former term employee Budget Analyst,
filed a timely appeal with this Commission from a final agency decision
(FAD) received by her on September 25, 1998, pertaining to her 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. In her
complaint, appellant alleged that she was subjected to discrimination on
the bases of race (African-American) and sex (female) when on February
17, 1998, appellant's supervisor spoke to appellant in a loud and abusive
tone of voice.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(g), for failure to cooperate. Specifically,
the agency found that it sent appellant two requests for information,
and appellant's only response consisted of a statement, already in the
record, which did not provide the required information. Further, the
agency found that appellant failed to respond to the second request.
On appeal, appellant argues that she was terminated on March 3, 1998,
and that her supervisor spoke to her in an abusive manner.
In response, the agency notes that appellant received the first agency
request for information concerning how she was aggrieved on June 12, 1998,
and responded June 16, 1998, with insufficient information. The agency
asserts that appellant never responded to the second request although
she received it on August 7, 1998. The agency argues that appellant's
failure to respond was contumacious conduct that delayed the EEO process,
and that there was insufficient information in the record from which the
agency could make a determination on the merits of appellant's allegation.
The Counselor's Report, dated June 2, 1998, states that appellant's
supervisor discussed a work assignment with appellant in an abusive tone.
According to the report, after appellant complained of the incident,
she was terminated. Appellant's formal complaint, dated May 18, 1998,
does not raise appellant's termination in the allegation section of the
complaint form, but seeks corrective action in the form of a �permanent
position as a Budget Analyst.�
The record contains the agency's requests for information, dated June 8,
1998, and August 4, 1998, and received by appellant on June 12, 1998 and
August 7, 1998, respectively. Both requests seek information concerning
how appellant was aggrieved by her supervisor's conduct on February 17,
1998, and inform appellant that her failure to respond within fifteen (15)
days may result in dismissal of her complaint. The record also includes
a copy of appellant's response to the first request for information,
dated June 16, 1998, in which appellant describes her February 1998
altercation with her supervisor, and explains that she was terminated
on March 3, 1998.
The Commission finds that the agency improperly defined appellant's
complaint. Appellant repeatedly raised the issue of her removal, in her
request for counseling, in her formal complaint, and in response to the
agency's request for information. Accordingly, appellant's allegations
are properly defined as: (1) on February 17, 1998, appellant's supervisor
spoke to appellant in a loud and abusive tone of voice; and (2) on March
3, 1998, appellant was terminated.
EEOC Regulation 29 C.F.R. �1614.107(g) provides that an 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 has stated that "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."
Kroeten v. United States Postal Service, EEOC Request No. 05940451
(Dec. 22, 1994) (citation omitted).
The Commission finds that appellant repeatedly has stated that on
February 17, 1998, appellant's supervisor spoke to her in an abusive
manner, and that appellant subsequently was terminated. Clearly,
the agency has sufficient information of how appellant was aggrieved
to permit adjudication of the complaint. Further, appellant complied
with the agency's first request by providing the relevant information
within fifteen days. Therefore, the agency's dismissal of appellant's
complaint for failure to cooperate is REVERSED, and appellant's complaint
is REMANDED for further processing.
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(c) (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 (R0993)
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. 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 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 (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:
Sept. 17, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations