0120152224
10-21-2015
Kellye C.,1 Complainant, v. Thomas E. Perez, Secretary, Department of Labor, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kellye C.,1
Complainant,
v.
Thomas E. Perez,
Secretary,
Department of Labor,
Agency.
Appeal No. 0120152224
Agency No. 15-11-054
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 4, 2015, dismissing a formal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Veterans' Correspondence Specialist at the Agency's Office of the Assistant Secretary for Veterans' Employment and Training in Washington D.C.
The record reflects that on November 14, 2014, Complainant initiated EEO Counselor contact, and on November 18, 2014, she received an email regarding her EEO rights and responsibilities, an informal EEO complaint form to complete and a set of questions to answer requesting additional information regarding her informal EEO complaint. On November 18, 2014, Complainant responded to the EEO Counselor's email by requesting an extension until November 28, 2014, to fill out the complaint form and answer the set of questions.
On December 1, 2014, Complainant sent an email to the EEO Counselor requesting additional time to respond to the requests for additional information and signed an extension for traditional counseling with a new deadline date for counseling on January 13, 2015. Between December 9, 2014 and January 12, 2015, Complainant failed to provide the EEO Counselor with the informal complaint form or with responses to the questions for additional information regarding her complaint. As a result, the EEO Counselor was unable to provide a counseling session within ninety (90) days, despite repeated requests, and Complainant's Notice of Right to File a formal EEO complaint was issued on January 13, 2015. The record reflects that Complainant filed her formal EEO complaint on January 29, 2015.
In her formal complaint, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of race, sex, disability, age, and in reprisal for prior EEO activity.
On
On May 4, 2015, the Agency issued an "administrative dismissal" of the complaint on the grounds that the claims had not been raised with an EEO Counselor and that it are not "like and related" to matters for which Complainant underwent EEO counseling, pursuant to 29 C.F.R. � 1614.107(a)(2).
The instant appeal from Complainant followed.
In response to Complainant's appeal, the Agency acknowledged that on March 17, 2015, it received Complainant's request to amend her complaint to add several new claims. The Agency stated that, due to an oversight, Complainant was not provided a counseling session on the amended claims. The Agency stated it is handling the new claims in Agency Case No. IM15-11-155, in which Complainant began EEO counseling on or around June 17, 2015.
ANALYSIS AND FINDINGS
The Agency dismissed the instant formal complaint on the grounds that the claims raised therein had not been raised with an EEO Counselor and that are not "like and related" to matters for which Complainant underwent EEO counseling. However, given the particular circumstances of this case, we determine that the formal complaint is more properly analyzed in terms of failure to cooperate, pursuant to 29 C.F.R. � 1614.107(a)(7).
The Commission has held that an Agency should not dismiss a complaint when it has sufficient information upon 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 or permit adjudication that the Commission has allowed a complaint to be dismissed for failure to cooperate. See Card v. United States Postal Service, EEOC Request No. 05970095 (April 23, 1998); Kroten v. United States Postal Service, EEOC Request No. 05940451 (December 22, 1994).
The record contains no persuasive evidence that Complainant engaged in delay or contumacious conduct in regard to the processing of the complaint. Moreover, a review of the instant formal complaint and the EEO Counselor's Report indicates that Complainant provided sufficient information to the EEO Counselor about various harassment incidents. The record reflects that the reasons Complainant felt that she was harassed and contains specific information regarding the harassment actions, the names of the alleged harassers, and the corrective action sought.
Therefore, we find that the Agency should provide Complainant with the opportunity to amend Agency Case No. IM15-11-155 (referenced in the Agency's statement on appeal) to include the claims the Agency dismissed in the instant complaint. If Agency Case No. IM15-11-155 is no longer active, the Agency shall provide Complainant, anew, with the opportunity to have EEO counseling on the matters raised in the instant formal complaint.
We REVERSE the Agency's final decision dismissing Complainant's formal complaint, defined herein as a harassment claim, and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER
Within thirty (30) calendar days of the date that this decision becomes final, the Agency shall provide Complainant with an appointment to meet with an EEO counselor to clarify the claims she was raising in the instant complaint and assist her in amending Agency Case No. IM15-11-155 to include those claims. If Agency Case No. IM15-11-155 is no longer active, the Agency shall provide Complainant with EEO counseling and then notify her of her right to file a new complaint. In either instance, the EEO counseling period shall not exceed thirty (30) days, unless Complainant and the Agency agree in writing to extend EEO counseling for an additional period of no more than sixty (60) days.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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's signature
Carlton M. Hadden, Director
Office of Federal Operations
October 21, 2015
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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