01A14615_r
01-02-2003
Jerome R. Johnson, et al., Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Jerome R. Johnson v. Department of the Treasury
01A14615
January 2, 2003
.
Jerome R. Johnson, et al.,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A14615
Agency Nos. 97-0007C, 01-3165
Hearing No. 160-97-8216X
DECISION
Complainant appeals to the Commission from two agency decisions dismissing
his complaints. On October 9, 1996, complainant filed a class complaint
alleging discrimination on the basis of race when the class was denied
promotions, development, awards, penalized more severely for violations,
and was subjected to ongoing harassment. On December 29, 1999, an EEOC
Administrative Judge (AJ) issued an Order recommending dismissal of the
class complaint finding the complaint did not meet the basic requirement
contained in 29 C.F.R. � 1614.204, for certification of the class.
The AJ further recommended that the class complaint be processed as an
individual complaint. The agency, on January 16, 2001, issued a decision
in regard to the class complaint, adopting the AJ's recommendation and
dismissed the class complaint for failure to meet the requirements to
certify a class complaint. Complainant appeals that decision identified
as agency number 97-0007C. In regard to the individual complaint, the
agency issued a decision dated June 27, 2001 dismissing the complaint
for failure to cooperate pursuant to 29 C.F.R. 1614.107(a)(7), and,
in part, for stating the same claim as a prior complaint pursuant to
29 C.F.R. � 1614.107(a)(1). Complainant also appeals that decision
identified as agency number 01-3165. The Commission will, herein,
make a determination on both agency decisions.
Class Complaint (97-0007C)
The Commission dismisses complainant's appeal of the agency decision
of agency number 97-0007C. According to 29 C.F.R. � 1614.402(a),
complainant must appeal an agency decision to the Commission within
30 days of receipt of the decision. Complainant, on appeal, admits
to receiving the decision on or about January 25, 2001. Therefore,
we find that complainant's July 23, 2001 appeal of the January 16,
2001 decision to be untimely, and dismiss the appeal pursuant to 29
C.F.R. � 1614.403(c).
Individual Complaint (01-3165)
We find the agency's June 27, 2001 dismissal of complainant's individual
complaint to be improper. The agency dismissed the individual complaint
for failure to cooperate pursuant to 29 C.F.R. � 1614.107(a)(7).
The record indicates that the agency requested more information from
complainant regarding his complaint by letter dated May 17, 2001.
The request informs complainant that failure to respond within 15 days
may result in his complaint being dismissed for failure to cooperate.
By letter dated June 18, 2001, complainant responded to the agency's
request for more information. The agency dismissed the complaint on the
grounds that complainant's response failed to provide specific incidents
or dates. The agency concluded that the complaint and complainant's
June 18, 2001 response were �not specific enough to define and accept
for investigation.�
We find that complainant, in his June 18, 2001 letter listed three
specific non-selections by title and by year. Complainant also noted
that he did not make the �BQ� list for any of the three positions.
Complainant also, in the June 18, 2001 letter, listed specific positions
for which he was allegedly denied details. Complainant listed the years
in which he was allegedly denied the details and the names of the persons
who denied the details. The Commission finds that complainant's response
was sufficiently detailed so as to make dismissal of the complaint for
failure to cooperate, or vagueness, to be improper.
The agency further dismissed one claim in the complaint finding that
complainant, in his vague, general response, raised a new claim of a
proposed removal dated March 20, 2001. The agency dismissed, pursuant to
29 C.F.R. � 1614.107(a)(1), finding that the new claim states the same
claim that is pending before the agency in a complaint identified as TD
01-3194. The agency has failed to support the record with a copy of the
complaint identified as TD 01-3194. Therefore, the record is insufficient
to make a determination on the agency's dismissal. Furthermore, it is not
clear whether complainant intended the statement regarding his proposed
removal to be a new claim or support for his ongoing harassment claim.
Since the agency has not supported the record with evidence that any
claim should be dismissed as stating the same claim that is pending
before the agency, we find the dismissal improper.
CONCLUSION
Complainant's appeal of the agency's January 16, 2001 decision regarding
the class complaint (97-0007C) is DISMISSED. The agency's decision
dismissing complainant's individual complaint (01-3165) is REVERSED and
we REMAND the individual complaint to the agency for further processing
in accordance with this decision and applicable regulations.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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. If you file
a request to reconsider and also file a civil action, 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
January 2, 2003
__________________
Date