01996998
11-29-2000
James Schroeder, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
James Schroeder v. Department of Transportation
01996998
11-29-00
.
James Schroeder,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01996998
Agency No. DOT1991072
DECISION
INTRODUCTION
Complainant timely filed an appeal with this Commission from the final
agency decision. This case pertains to his complaint of unlawful
employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 633a(b).
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(7).<1>
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
complainant's formal EEO complaint for failure to cooperate.
BACKGROUND
On July 1, 1999, complainant filed a formal EEO complaint alleging
that he was discriminated against based on his age (49) when he was
subjected to disparate treatment in the administration of training to
recertify as an Air Traffic Controller.<2> Complainant alleged that he
was subjected to derogatory remarks such as being called �Geritol Jim�
by his co-workers, and pranks such as a betting pool based on whether
complainant would leave early on sick leave if his performance went
poorly during training. In a letter dated August 2, 1999, the agency
requested additional information in order to identify and clarify the
complainant's allegations. The letter warned complainant, stating:
If, we do not hear from you within five calendar days of receipt of this
letter,
we will assume that you do not wish us to consider those allegations.�
Twenty days after the request was received by the complainant, the
agency, on August 24, 1999, dismissed the complaint pursuant to 29
C.F.R. � 1614.107(a)(7) for failure to cooperate.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) requires an agency to dismiss
a complaint or a portion of a complaint for failure to cooperate, or
alternatively, to adjudicate the complaint if sufficient information for
that purpose is available. The regulation applies under the following
circumstances: (1) the agency has provided the complainant with a written
request to provide relevant information or to otherwise proceed with the
complaint; (2) the request included a notice of the proposed dismissal
for failure to respond within 15 days of receipt of the request; and (3)
the complainant either fails to respond to the request within 15 days
of receipt or the complainant's response does not address the agency's
request. The Commission has further held that the regulation is applicable
only in cases where there is a clear record of delay or contumacious
conduct by the 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).
We disagree with the agency that complainant's ADEA claim should be
dismissed for failure to cooperate. Although the agency contends that
complainant failed to provide the additional information requested by
its letter dated August 2, 1999, the agency was in violation of EEOC
Regulations when it failed to provide the complainant with 15 days to
respond to its request and with sufficient notice as to the possibility
of dismissal. We find, therefore, that 29 C.F.R. � 1614.107(a)(7) is not
applicable to the claim at hand because the complainant was not given
15 days to respond to the agency's inquiry, sufficient notice was not
given as to the possibility of dismissal, and there is no clear record
of delay or contumacious conduct by complainant. The agency should not
have dismissed complainant's claim for failure to cooperate.
CONCLUSION
Accordingly, the decision of the agency is REVERSED and REMANDED for
further processing in accordance with this decision and the proper
regulations. The parties are advised that this decision is not a decision
on the merits of complainant's complaint. The agency shall comply with
the Commission's Order set forth below.
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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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
__11-29-00________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2A reading of the record indicates that the complainant is raising a
claim of harassment due to a hostile work environment based on his age
that occurred during his training for recertification as an Air Traffic
Controller.