01984461
06-18-1999
James O. Mosley, Appellant, v. Kenneth S. Apfel, Commissioner, Social Security Administration, Agency.
James O. Mosley v. Social Security Administration
01984461
June 18, 1999
James O. Mosley, )
Appellant, )
)
v. ) Appeal No. 01984461
) Agency No. 97-0507-SSA
Kenneth S. Apfel, )
Commissioner, )
Social Security )
Administration, )
Agency. )
______________________________)
DECISION
On May 22, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated April 22, 1998, pertaining
to 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. In his complaint, appellant alleged that he was subjected to
discrimination on the bases of race (Black) and in reprisal for prior
EEO activity when:
On June 26, 1997, appellant was suspended for three days;
In the summer of 1996, appellant was given a cash award in an amount
that was less than his peers, even though he had consistently maintained
the lowest pending workload in his division;
In May 1996, appellant was denied a promotional opportunity for the
position of Benefit Authorizer because his Module Manager (MM) gave
him a lukewarm recommendation;
On February 27, 1997, appellant was reprimanded for failure to comply
with the rules and regulations governing leave usage;
In the summer of 1996, appellant's request for reassignment was denied;
On an unspecified date appellant was denied a fair recommendation
for the Claims Representative position because the MM stated that
appellant failed to meet two criteria of the "meet and deal" interview
requirements;
On unspecified dates appellant was subjected to harassment (nonsexual)
about his requests for annual leave; and
On an unspecified date appellant's request for visual glasses was
denied.
The agency accepted allegation (1) for investigation and
dismissed allegations (2) through (8) pursuant to EEOC Regulation 29
C.F.R. �1614.107(g), for failure to cooperate. Specifically, the agency
determined that because appellant failed to respond to a February 5,
1998 certified letter addressed to his representative in which the agency
requested additional information concerning allegations (2) through (8),
dismissal was proper pursuant to 29 C.F.R. �1614.107(g).
EEOC Regulation 29 C.F.R. �1614.107(g) provides 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.
On appeal, appellant contends that he never received a copy of the
letter requesting additional information. In this case, however, it is
unnecessary for the Commission to address this contention. Under the
circumstances in this case, we find that the agency's dismissal of
allegations (2) through (8) for failure to cooperate was improper.
The record indicates that on February 12, 1998, a memorandum from the
agency was received at appellant's representative's address of record
requesting that appellant furnish additional information and indicating
that failure to do so within 15 days would result in dismissal of
her complaint. According to the agency, appellant failed to furnish a
response, and therefore, allegations (2) through (8) should be dismissed
for failure to cooperate. We note, however, that the agency failed
to show why the additional information requested for allegations (2)
through (8) was necessary for the further processing of the complaint.
The agency found that there was sufficient information in the record to
be able to define these allegations and accept them for investigation.
Moreover, we note that these allegations, along with the EEO Counselor's
Report, addressed the incidents of alleged discrimination, with reference
to the responsible agency officials, the bases on which appellant
alleged discrimination, the time frame in which they occurred,<1>
and the corrective action sought. The Commission has held that as a
general rule, an agency should not dismiss a complaint when it has
sufficient information on which to base an adjudication. See Ross
v. United States Postal Service, EEOC Request No. 05900693 (August 17,
1990); 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 dismissed
for failure to cooperate. See Kroeten v. U.S. Postal Service, EEOC
Request No. 05940451 (December 22, 1994); Raz v. United States Postal
Service, EEOC Request No. 05890177 (June 14, 1989). Therefore, under
the circumstances, we find that the agency's dismissal of allegations
(2) through (8) for failure to cooperate was improper.
Accordingly, the agency's decision to dismiss allegations (2) through (8)
was improper and is hereby REVERSED. Those allegations are REMANDED to
the agency for further processing in accordance with this decision and
the Order 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(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:
June 18, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1We acknowledge that no date was associated with allegation (6). However,
the agency would be able to obtain this information by examining when the
Claims Representative position was advertised. Similarly, although
appellant identified no date with regard to allegation (8), we find that
the record contains sufficient information from which to deduce this
information.