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.