01992394
11-01-1999
Ronza R. Nash, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Ronza R. Nash v. Department of Defense
01992394
November 1, 1999
Ronza R. Nash, )
Appellant, )
)
v. ) Appeal No. 01992394
) Agency No. AA-99-007
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., Section 501 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. �791 et seq., and the Age Discrimination in Employment
Act, as amended, 29 U.S.C. �621 et seq. The final agency decision was
issued on January 27, 1999. The appeal was postmarked February 4, 1999.
Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)), and is
accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
an allegation of appellant's complaint on the grounds of failure to
cooperate.
BACKGROUND
Appellant initiated contact with an EEO Counselor on December 8, 1998.
On January 19, 1999, appellant filed a 201-page formal EEO complaint
wherein she alleged that she had been discriminated against on the bases
of her race (Negro), color (brown), sex (female), age (date of birth,
10/23/52), religion (Lutheran), physical disability (high blood pressure,
insomnia), mental disability (confused, seeing a psychiatrist), and in
reprisal for her previous EEO activity when:
1. She was subjected to harassment; and
2. She was ridiculed in front of coworkers.
By letter dated January 21, 1999, the agency requested that appellant
provide specific information regarding her allegations: namely, to include
who, what, when, and how she was subjected to harassment and ridiculed
in front of co-workers; to describe how the terms and conditions of her
employment were affected by the identified actions; and to include who,
what, how, and when she was subjected to retaliation. The agency informed
appellant that failure to address and provide specificity about these
matters within fifteen (15) calendar days would result in the dismissal
of her complaint.
In a letter dated January 22, 1999, appellant submitted her response.
Appellant indicated that a recent incident of harassment occurred on
January 19, 1999, when her supervisor made an entry on her 7B card
claiming she abused her sick leave. Further, appellant described
how at staff meetings she is singled out "with nitpick harassing
comments" witnessed by all the attendees. Appellant indicated that
her two co-workers harass her and leave her out of work assignments.
Appellant stated that these incidents were the most recent and were in
addition to all those set forth in her 201-page formal complaint.
In its final decision, the agency dismissed the allegation of appellant's
complaint dealing with appellant being ridiculed in front of her
coworkers. The agency dismissed this allegation on the grounds that
appellant failed to cooperate. The agency determined that appellant
failed to address and provide specificity in her response with regard
to this allegation. Thereafter, appellant filed the instant appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(g) provides that the agency shall
dismiss a complaint or a portion 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.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
The Commission notes that an agency's decision to invoke the provisions
of 29 C.F.R. �1614.107(g) should be made by the agency only when there
is a clear record of delay or contumacious conduct by the complainant.
Connolly v. Papachristid Shipping Ltd., et al., 504 F.2d 917 (5th
Cir. 1974). This is because implicit in the scheme of attempted control
of the evil of discrimination by administrative and judicial machinery
is a degree of cooperation by the complaining party. Jordan v. United
States, 522 F.2d 1128 (8th Cir. 1975). Accordingly, the obligation
to informally and expeditiously resolve complaints is imposed on both
parties.
Based on the record herein, we find that the agency improperly dismissed
the allegation of appellant's complaint concerning appellant being
ridiculed in front of her coworkers for failure to cooperate. First,
appellant clearly responded to the agency's request by further identifying
recent incidents of alleged discrimination, including the names of the
responsible officials. Furthermore, we note that appellant's 201-page
formal complaint contains detailed accounts of incidents involving
various named employees, which appellant alleged constituted prohibited
harassment. The Commission had 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 Service, EEOC
Request No. 05900693 (August 17, 1990); Brinson v. U.S. Postal Service,
EEOC Request No. 05900193 (April 12, 1990). We find that sufficient
information is available concerning appellant's complaint to permit
adjudication on the merits.
Finally, we find that the agency's determination to separate appellant's
complaint of harassment into to separate issues, i.e., an issue of
harassment and an issue that she was being ridiculed, is confusing
at best. Clearly, appellant is alleging that she was subjected to a
pattern of harassment, which created a hostile environment, and being
ridiculed in front of others is but one form of the alleged harassment.
The Commission has previously held that an agency should not ignore the
"pattern aspect" of a complainant's allegations and define the issues
in a piecemeal manner where an analogous theme unites the matters
complained of. Meaney v. Department of the Treasury, EEOC Request
No. 05940169 (November 3, 1994). Therefore, on remand the agency should
view appellant's allegations as a whole complaint of harassment and
address it accordingly.
CONCLUSION
The agency's final decision is REVERSED and the complaint, as defined
herein is REMANDED to the agency for further processing consistent with
the Order below and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
November 1, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations