0120112888
10-28-2011
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.
Appeal No. 0120112888
Agency No. 200400202010104201
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated April 6, 2011, dismissing her 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
At the time of events giving rise to this complaint, Complainant
worked as a Management Program Analyst at the Agency’s Veterans
Benefit Administration located in Washington, D.C. On October 4, 2010,
Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination on the bases of race (African-American), sex
(female), disability (mental), age (47), and reprisal for prior protected
EEO when: From June 6, 2010 – July 26, 2010, Complainant’s request
for a reasonable accommodation was denied.
Complainant subsequently amended her complaint to include a claim of
discrimination on the bases of race, sex, disability, age, and reprisal
when, on December 9, 2010, Complainant was issued a Decision - Notice
of Removal from the position of Management Program Analyst, GS-13.
The matter was accepted for investigation. The complaint was assigned
to an investigator on January 11, 2011. Complainant was scheduled
for an interview with the investigator (Investigator) on February
2, 2011. Complainant informed the Investigator that she would not be
able to participate on February 2, 2011, and the interview was canceled.
On February 15, 2011, the Investigator asked Complainant and her attorney
(Attorney) to reschedule the interview for February 22 or 23, 2011.
The Attorney asked for the interview to happen on February 23, 2011.
The Investigator contacted Complainant to confirm the rescheduled
interview. On February 22, 2011, Complainant called the Investigator
to tell him that she was not going to be there the next day because
the Attorney was negotiating on the case. The Investigator indicated
to Complainant that if the Attorney wanted to engage in mediation that
the Attorney and Complainant should sign an agreement to mediate and
the Alternative Dispute Resolution (ADR) extension by March 1, 2011.
The Investigator also advised Complainant that if she did not return
the forms, the Investigator would schedule Complainant’s testimony in
two weeks.
When Complainant failed to submit the forms, the Investigator set a new
date for Complainant’s interview. The Investigator informed Complainant
on March 2, 2011, that Complainant’s Attorney would need to schedule
the interview before March 9, 2011. The Attorney initially requested
the interview to occur on March 8, 2011. However, the Attorney sent an
email on March 7, 2011, cancelling the interview.
The Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(7)
for failure to cooperate with the investigation. The Agency noted
that Complainant sought to delay the investigation by asserting
that the Attorney was in the middle of negotiations with the Agency.
However, the Investigator noted that Complainant did not provide the
ADR extension forms as requested by the Agency. Further, the Agency
noted that Complainant was warned that failure to cooperate with the
investigation could result in dismissal of her complaint. Further,
the Agency argued that it could not continue the investigation without
Complainant’s input. As such, the Agency dismissed the complaint
pursuant to 29 C.F.R. § 1614.107(a)(7).
This appeal followed.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(7) 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. Furthermore, 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. U.S. Postal Serv., EEOC
Request No. 05900693 (August 17, 1990); Brinson v. U.S. Postal Serv.,
EEOC Request No. 05900193 (April 12, 1990).
In the instant matter, we find that the Agency improperly dismissed
Complainant's formal complaint. We find that Complainant's affidavit
was not necessary for further processing of the complaint. The record
contains sufficient information upon which to render a final decision on
the merits. The record reflects that the Counselor's Report and formal
complaint provided sufficient information with respect to identifying
Complainant's claims. In addition, the Report of Investigation contained
affidavits and statements from the pertinent Agency managers and employees
with respect to Complainant’s claims of discrimination.
CONCLUSION
Accordingly, we VACATE the Agency's final decision dismissing
Complainant's complaint and we REMAND this matter to the Agency for
further processing in accordance with the ORDER below.
ORDER
The Agency is ordered to resume processing of 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 his
complaint.
A copy of the Agency letter of acknowledgment 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.
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, Director
Office of Federal Operations
October 28, 2011
__________________
Date
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0120112888
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112888