0520120146
05-23-2012
Korreain Duckenfield, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Korreain Duckenfield,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520120146
Appeal No. 0120112888
Agency No. 2004-0020-2010104201
DENIAL
The Agency timely requested reconsideration of the decision in Korreain Duckenfield v. Department of Veterans Affairs, EEOC Appeal No. 0120112888 (October 28, 2011). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
In our previous decision, we vacated the Agency's final decision dismissing Complainant's formal EEO complaint pursuant to 29 C.F.R. � 1614.107(a)(7) for failure to cooperate, i.e., for failure to provide requested information within the time specified. Specifically, Complainant failed to provide an affidavit to the investigator assigned to her complaint, despite several attempts by the investigator to secure Complainant's affidavit; the investigation was otherwise completed. We noted that where, as in this case, the record contains sufficient information for the adjudication of a complaint, the Agency, rather than dismiss the complaint, should issue a decision on the merits.
In its request for reconsideration, the Agency argues that, contrary to our finding below, the complaint cannot be adjudicated without Complainant's affidavit; that complainant engaged in contumacious conduct by repeatedly delaying her interview with the investigator; and that the previous decision means that "agencies will be forced to adjudicate EEO complaints on the merits even when the complainant has engaged in delay or contumacious conduct and the record is insufficient to permit adjudication."
The Agency did not file a brief in opposition to Complainant's appeal. We remind the Agency that a "request for reconsideration is not a second appeal to the Commission." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Nov. 9, 1999), at Chap. 9, Sec. VII.A.; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). A reconsideration request is an opportunity to demonstrate that the previous decision involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency. The arguments raised by the Agency could have, and should have, been raised below. Raising these arguments for the first time now does not establish that our previous decision was in error.
Further, to the extent that the Agency appears to argue that the previous decision would have a substantial impact on its policies, practices, or operations, or those of other federal agencies, we note that nothing in our previous decision requires it or any other agency to adjudicate claims on an insufficient record, or when a complainant has engaged in actual contumacious conduct (of which delay might be a subset). In this case, we reviewed the record and determined that the investigation had been completed but for Complainant's affidavit, and provided a sufficient basis for adjudication. If anyone was at a disadvantage by the lack of Complainant's affidavit, it was Complainant herself, not the Agency. Moreover, we did not find that Complainant's delay of the proceedings amounted to contumacious conduct. The less-than-flattering version of events recounted by the Agency in its request (which again, should have been raised on appeal) does not persuade us otherwise.
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120112888 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below.
ORDER
The Agency is ordered to resume processing Complainant's complaint from the point where processing ceased in accordance with the procedures detailed in 29 C.F.R. Part 1614. Within thirty (30) calendar days of the date this decision becomes final, the Agency shall acknowledge to Complainant that it has reinstated and resumed processing of this complaint.
A copy of the Agency's letter of acknowledgment to Complainant must be sent to the Compliance Officer as referenced below.
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.
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, Director
Office of Federal Operations
May 23, 2012
Date
2
0520120146
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0520120146