01996338
06-20-2000
Nadene M. Sammann, Complainant, v. William M. Daley, Secretary, Department of Commerce, Agency.
Nadene M. Sammann, )
Complainant, )
)
v. ) Appeal No. 01996338
) Agency No. 99-63-00579D
William M. Daley, )
Secretary, )
Department of Commerce, )
Agency. )
)
DECISION
The instant appeal is being processed following the implementation of
a Memorandum of Understanding (MOU), entered into by the agency, the
Bureau of the Census, and the United States Equal Employment Opportunity
Commission.<1> The MOU was entered into in order to process complaints
arising from the 2000 Decennial Census more effectively and efficiently.
Pursuant to the MOU, individuals file their complaints directly with
the Commission. The Commission, through its Washington, D.C. Field
Office, then conducts an early assessment of complaints and neutral
evaluation of cases. The Washington, D.C. Field Office of the Commission
establishes a record of the complaint by obtaining an affidavit from the
complainant and by contacting an agency official to obtain the necessary
information on the complaint. Based on the record established by the
Washington, D.C. Field Office, the Washington, D.C. Field Office will:
(1) notify the agency that the individual has elected not to file a
formal complaint; (2) issue a decision dismissing the complaint and
notify the complainant or his or her right to appeal the decision to
the Office of Federal Operations; (3) conduct settlement negotiations;
or (4) notify the complainant that the complaint has been accepted and
forward the complaint to the agency for further investigation.
In the instant matter the Washington, D.C. Field Office of the Commission
issued a decision dated July 9, 1999 dismissing the instant complaint for
failure to cooperate. The regulation found at 64 Fed. Reg. 37,644, 37656
(to be codified as and hereinafter cited as 29 C.F.R. � 1614.107(a)(7))
provides:
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. Instead of dismissing for failure to cooperate,
the complaint may be adjudicated if sufficient information for that
purpose is available.
The Washington, D.C. Field Office defined the complaint as claiming that
complainant was discriminated against when complainant was prevented
from returning to her job after she suffered a work related injury.
The Washington, D.C. Field Office found:
Examination of the evidence reveals that you refused to provide sufficient
information to support your [claims] during the investigation process.
Based on this analysis, I have decided to dismiss your complaint for
failure to cooperate as described under 29 [C.F.R.] �1614.107.
The record contains an affidavit from an Investigator for the Washington,
D.C. Field Office who indicated that he contacted complainant by telephone
but that she refused to provide a statement over the telephone for
various stated reasons. There is no indication in the record that the
Washington, D.C. Field Office or the agency provided complainant with a
written request to provide a statement or that complainant was informed
in writing that her failure to provide the requested statement within 15
days might result in dismissal of her complaint. The Commission notes
that the agency, on appeal, states that the record does not include
such a written request.<2> Therefore, we find that the record does not
support a finding that complainant failed to cooperate pursuant to the
provisions of � 1614.107(a)(7).
The Washington, D.C. Field Office's dismissal of the complaint is REVERSED
and we REMAND the complaint to the Washington, D.C. Field Office for
further processing in accordance with this decision, the Memorandum of
Understanding, and applicable regulations.
ORDER
The Washington, D.C. Field Office shall, pursuant to the Memorandum
of Understanding referenced in this decision, conduct settlement
negotiations on the instant complaint or notify complainant that the
complaint has been accepted and forward the complaint to the agency for
further investigation.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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:
June 20, 2000
DATE
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
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 64 Fed. Reg. 37,644 (1999),
where applicable, in deciding the present appeal. The regulations, as
amended, may also be found at the Commission's website at www.eeoc.gov.
2On appeal, the agency states that it has decided to accept the complaint
for further processing and requested that the Commission remand the case
to the agency.