0120091386
08-11-2009
Susan R. Brakefield, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.
Susan R. Brakefield,
Complainant,
v.
Gary Locke,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120091386
Agency No. 086300217
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated January 15, 2009, dismissing her complaint of
unlawful employment discrimination in violation of 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. Upon review, the Commission finds
that complainant's complaint was improperly dismissed pursuant to 29
C.F.R. � 1614.107(a)(2) for raising matters that had not been brought
to the attention of an EEO Counselor.
The record reveals the following:
Complainant initiated contact with the agency's Equal Employment
Opportunity (EEO) Office on September 30, 2008, alleging that due to
her age, she was "being passed up for promotions." The EEO Counselor
left telephone messages for complainant on October 8, 9, 14, and
16, 2008. Since the EEO Counselor was unable to reach complainant,
and complainant had not responded to the messages left, the agency
EEO Office issued complainant a Notice of Right to File [a formal
complaint of discrimination] within 15 Calendar Days on October 27, 2008.
The U.S. Postal Service's PS Form 3811, Domestic Return Receipt, shows
that complainant received the notice on October 29, 2008. On November
12, 2008, complainant filed this formal complaint. In her complaint,
complainant alleged that she "[a]pplied for at least six supervisor
positions in CPS" and that she was "[t]urned down for promotions."
In her complaint, complainant also stated, "Merit increases not given
due to hours." Because complainant's complaint lacked specificity, the
Department's Office of Civil Rights (OCR) sent complainant a Request
for Information (RFI) on December 11, 2008. On December 30, 2008,
complainant responded to the RFI via facsimile.
In her [now revised] formal complaint, complainant alleged that
she was subjected to discrimination on the bases of disability (Not
Specified), age (56), and reprisal for prior protected EEO activity
under the Rehabilitation Act when: 1) she was not selected for the
position advertised under Recruiting Bulletin/Vacancy Announcement
LARO-SFR-08-06071-02; 2) she was not selected for the position advertised
under Recruiting Bulletin/Vacancy Announcement LARO-SFR-08-15003-05;
3) she was not selected for the position advertised under Recruiting
Bulletin/Vacancy Announcement LARO-SFR-08-06079-03; 4) she was not
selected for the position advertised under Recruiting Bulletin/Vacancy
Announcement LARO-SFR-08-06065-04; 5) she was not selected for the
position advertised under Recruiting Bulletin/Vacancy Announcement
LARO-SFR-08-06037-01; 6) she was not selected for the position advertised
under Recruiting Bulletin/Vacancy Announcement 04-08-GG-0303-05; 7)
she was not selected for the position advertised under Recruiting
Bulletin/Vacancy Announcement LARO-SFR-06-065-11; 8) she was not
selected for the position of Senior Field Representative, GG-0303-06, as
advertised under Recruiting Bulletin LARO-SFR-08-06-065-12; and 9) she
is not provided the same number of cases to work as other Senior Field
Representatives with less seniority, resulting in a loss of benefits
and adversely affecting her pay.
On January 15, 2009, the agency dismissed complainant's formal
complaint without prejudice because complainant had set forth claims
that purportedly had not been raised to the EEO Counselor and because her
response did not provide sufficient information for OCR to determine if
her claims met the procedural requirements of Title 29, Code of Federal
Regulations (C.F.R.), section (�) 1614.107(a)(2). Notwithstanding
complainant's lack of cooperation with the agency's EEO Counselor, OCR,
in its final decision, provided complainant "with an opportunity to return
and properly complete the informal process." In its appeal statement, the
agency argues that by deliberately refusing to provide the EEO Counselor
with specific information, complainant prevented the EEO Counselor from
properly counseling her, as well as attempting to resolve the complaint
at the lowest level, the very purpose of the informal process. Moreover,
the agency maintains that by refusing to cooperate with the EEO Counselor,
complainant is attempting to bypass the mandated informal EEO complaint
process.
Generally, 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 to 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); Kroeten v. United States Postal Service, EEOC Request No. 05940451
(Dec. 22, 1994).
In the instant case, we find that, although complainant has not explained
why she was not responsive to the EEO Counselor, there is insufficient
evidence to support a conclusion that she purposely engaged in delay
or contumacious conduct. Instead, we find that there was sufficient
information in the record to have permitted the agency to have conducted
the investigation (by collecting evidence from management witnesses)
without complainant's informal counseling to permit an adjudication on
the merits. A review of the record indicates that while complainant
briefly spoke with the agency's EEO Counselor assigned to her in this
matter, complainant did subsequently provide detailed information in
her December 30th response to the RFI via facsimile. The information
provided on complainant's claims was sufficient to identify the specific
management actions she is concerned with, the relevant timeframes and
the responsible management officials. This is sufficient information
to permit management witnesses to respond to complainant's allegations.
See Hearl v. United States Postal Service, EEOC Appeal No. 0120082505
(July 28, 2008). Whether or not the information provided by complainant
is sufficient evidence to support her claim of discrimination can be
addressed in an adjudication of the merits of her complaint. And notably,
while not pivotal in this case, the agency should not have issued a Notice
of Right to File to complainant if she had not met the requirements of
its informal counseling process.
Accordingly, we conclude that the agency should have conducted its
investigation of the complaint without complainant's informal counseling
and allowed for an eventual adjudication on the merits rather than
dismissing the complaint. The complaint is hereby remanded to the agency
for further processing in accordance with this decision and the Order
below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K1208)
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 (M1208)
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), 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 (R0408)
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 (Z1008)
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
August 11, 2009
__________________
Date
2
0120091386
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091386