Virginia A. Dipple, Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.

Equal Employment Opportunity CommissionNov 17, 2004
01A41939_r (E.E.O.C. Nov. 17, 2004)

01A41939_r

11-17-2004

Virginia A. Dipple, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Contract Audit Agency), Agency.


Virginia A. Dipple v. Department of Defense

01A41939

11/17/2004

.

Virginia A. Dipple,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

(Defense Contract Audit Agency),

Agency.

Appeal No. 01A41939

Agency No. W04-02

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated January 8, 2004, 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.

On October 3, 2003, complainant initiated EEO Counselor contact.

Informal efforts to resolve her concerns were unsuccessful. In her

formal complaint dated October 29, 2003, complainant alleged that she

was subjected to discrimination on the basis of sex.

In its January 8, 2004 final decision, the agency determined that

complainant's complaint was comprised of the following claim:

Complainant alleges that because of her sex (female) she has been the

victim of a hostile work environment. Specifically, [complainant]

has alleged that:

a) management made false statements about her credibility as an auditor;

b) management singled her out and reviewed her work for nine months to

support these false statements about her; and

c) management conducted a false PCIE review for discriminatory purposes.

The agency dismissed complainant's complaint for failure to cooperate.<1>

Specifically, the agency stated that complainant failed to supply the

agency with the dates of the alleged discriminatory incidents after

several requests. The agency further stated that its third request

informed complainant that failure to supply the requested information

within fifteen days could result in the dismissal of her complaint.

The agency also dismissed complainant's complaint on the alternate grounds

of untimely EEO Counselor contact. Specifically, the agency asserted

that due to complainant's failure to supply the requested information,

the agency conducted an inquiry in order to determine the dates of the

alleged incidents referenced in complainant's complaint. The agency

concluded from its inquiry, that the alleged incidents occurred in 2001

and 2002. Therefore, the agency determined that complainant's initial

EEO Counselor contact was untimely.

On appeal, complainant, through her representative, states that the

agency improperly dismissed her complaint. Specifically, complainant's

representative states that the agency failed to provide her with an EEO

Counselor. In addition, complainant's representative (CR) states that

the agency improperly identified complainant's claims. Specifically, CR

states that complainant's complaint is comprised of eight claims and that

seven claims were not addressed in the agency's final decision. Moreover,

complainant's representative asserts that �it is inappropriate for the

office named in the complaint to dismiss a complaint filed against it.�

In response, the agency requests that we affirm its final decision.

In addition, the agency asserts that the information it requested from

complainant was relevant.

EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides that the agency shall

dismiss 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 failed to respond to the request

within fifteen days of its receipt or the response does not address the

agency's request. In enforcing this regulation, the Commission has held

that where the complainant has engaged in delay and contumacious conduct

and the record is insufficient to permit adjudication, the Commission

will affirm the agency's dismissal of a complaint on the grounds of

failure to prosecute. See Delgado v. United States Postal Service,

EEOC Request No. 05900859 (October 25, 1990).

The Commission finds that the agency properly dismissed complainant's

complaint for failure to cooperate. The record contains a letter from an

EEO Officer (E1) to CR dated November 12, 2003. Therein, E1 requested

that complainant provide her with additional information regarding

her complaint within fifteen calendars days of receiving the request.

Moreover, E1 stated that complainant's complaint may be dismissed if the

requested information was not provided within the designated time frame.

The record reflects that complainant received the notice via e-mail on

November 12, 2003.

By letter dated November 12, 2003. CR responded. Therein, CR stated

that complainant's complaint is sufficiently precise. In addition,

CR stated that �[c]omplaints of discrimination brought pursuant to

Executive Order 11478 [are not] covered by 29 C.F.R. � 1614 because

Executive Order 11478 is not mention[ed] in 29 C.F.R. � 1614.103.�

CR concluded by stating that complainant's complaint is brought under

Executive Order 11478 and Title VII.

By letter dated November 17, 2003, E1 responded. Therein, E1

stated that �Executive Order 11478 vests the U.S. Equal Employment

Opportunity Commission with the authority to issue rules, regulations,

and instructions that it deems necessary and appropriate to carry out the

Order.� Moreover, E1 stated that �there is no separate vehicle for

processing complaints of discrimination brought pursuant to Executive

Order 11478, therefore, [complainant's] complaint is appropriately

processed under 29 C.F.R. Part 1614.� In addition, E1 requested

from complainant the dates of the alleged discriminatory incidents.

Specifically, E1 stated that �it is important that [complainant] provide

the dates associated with the incidents she is complaining of so that an

informed and appropriate decision can be made regarding the timeliness

of her claim.� In conclusion, E1 informed complainant that her formal

complaint may be dismissed if the requested information was not received

by December 2, 2003. The record reflects that complainant received E1's

November 17, 2003 letter by e-mail on November 17, 2003.

The record also contains a copy of a letter dated November 19, 2003

from E1 to complainant's representative. Therein, E1 stated that CR

called her on November 17, 2003 and stated that complainant would not be

providing the requested information. In her letter dated November 19,

2003, E1 again requested complainant to provide her with the dates of

the alleged incidents. In conclusion, E1 stated that complainant has

fifteen days from receipt of E1's November 19, 2003 letter to provide the

requested information. Moreover, E1 asserted that if she did not receive

the requested information within the designated time frame that she would

propose to dismiss complainant's complaint. The record reflects that

complainant received E1's November 19, 2003 letter by e-mail on November

19, 2003. The record is devoid of evidence that complainant provided the

requested information within fifteen calendar days of November 19, 2003.

In a letter to E1 dated January 15, 2004, subsequent to the agency

dismissal of the instant complaint, CR stated that complainant's claims

are ongoing and thus occurred within the forty-five day requirement for

initiating EEO Counselor contact. CR further stated that the agency is

not relieved of its responsibility of processing complainant's complaint

under Executive Order 11478.

In the instant case, we find complainant engaged in delay and contumacious

conduct by consistently failing to provide the requested information,

within the designated time frames. The agency properly informed

complainant that the requested information was necessary in order to

determine whether complainant's complaint was timely and that failure to

provide the information within fifteen calendars days of complainant's

receipt of the agency's request could result in the dismissal of her

complaint.

The Commission, moreover, is unpersuaded by complainant's assertion

that the agency improperly framed complainant's claim. In each of her

three information requests, E1 identified complainant's complaint as

a hostile work environment claim based on sex and set forth several

alleged incidents comprising complainant's hostile work environment

claim. Moreover, E1's information requests informed complainant

that she should provide E1 with information regarding any other alleged

incidents within fifteen days of complainant's receipt of the request.

The record is devoid of evidence that complainant clarified the nature

of her claims during the designated time frames. The record reflects

that CR in a letter dated January 15, 2004, subsequent to the agency's

final decision, asserted for the first time that complainant's complaint

was comprised of eight separate claims.

CR's assertion that the agency, under Executive Order 11478, is not

relieved of its responsibility for processing complainant's complaint

is incorrect. Executive Order 11478, signed August 8, 1969, as amended

by Executive Order 12106, effective January 1, 1979, provides that �[t]he

Equal Employment Opportunity Commission shall be responsible for directing

and furthering the implementation of the Policy of the Government of the

United States to provide equal opportunity in Federal employment for all

employees or applicants for employment...and to prohibit discrimination

in employment because of race, color, religion, sex, national origin,

handicap, or age.� In addition, complaints of discrimination brought

by federal employees are processed under 29 C.F.R. � 1614. See 29

C.F.R. � 1614.103.

CR's assertion that the agency failed to provide complainant with an

EEO Counselor is not supported by the record. The record contains

a copy of a letter to CR from E1 dated November 4, 2003. Therein,

E1 states that complainant e-mailed, the Western Region EEO Manager

(EM1), on October 3, 2003. Moreover, E1 stated that there was some

sort of mis-communication between complainant and EM1. Specifically,

E1 stated that EM1 thought that complainant did not want to proceed with

counseling and therefore did not assign an EEO Counselor. Moreover, E1

asserted that �it is now evident that [complainant] wishes to proceed

with a complaint and it is undisputed that [complainant] contacted

[EM1] more than 30 days ago to request counseling. In that the informal

counseling period, which 29 C.F.R. � 1614.105(d) states begins on the

date the aggrieved person contacts the agency's EEO office to request

counseling and runs for 30 days, now has expired, [complainant] is now

entitled to proceed with a formal complaint of discrimination, which

she has done.� Based on these circumstances, the Commission does not

find that the agency failed to provide complainant with an EEO Counselor.

Accordingly, the agency's final decision dismissing complainant's

complaint is AFFIRMED.

Because we affirm the dismissal for the reason stated herein, we find

it unnecessary to address alternative dismissal grounds.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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 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 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 (S0900)

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. 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. If you

file a request to reconsider and also file a civil action, 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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

11/17/2004

Date

1In its final decision, the agency stated

that it is dismissing complainant's complaint pursuant to 29 C.F.R. �

1614.107(a)(6); however, the Commission assumes that the agency's

dismissal is based upon 29 C.F.R. � 1614.107(a)(7), because the agency

stated that complainant failed to provide requested information, after

receiving several requests for it.