01A12319_r
06-14-2001
Walter J. Goerner, Complainant, v. Gregory R. Dahlberg, Acting Secretary, Department of the Army, Agency.
Walter J. Goerner v. Department of the Army
01A12319
June 14, 2001
.
Walter J. Goerner,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A12319
Agency No. AHBRFO0012A0170
DECISION
Complainant timely appealed to this Commission from an agency's January
25, 2001 decision to dismiss his employment discrimination complaint.
In his complaint, complainant alleged harm on the basis of sex (male)
when he was terminated on November 17, 2000. The agency dismissed the
complaint for failure to cooperate, finding that complainant failed to
respond within fifteen (15) calendar days to a request for information.
On appeal, complainant argues that during a meeting with the EEO Counselor
and another agency official, he was informed that his formal complaint
would not be due until after January 1. Since this date involved working
days rather than calendar days, complainant contends that he assumed
all time frames would be calculated in business days, not calendar days.
The agency's formal complaint form asked whether complainant appealed
the alleged matter to the Merit Systems Protection Board (MSPB) or in the
negotiated grievance procedure. Complainant responded �yes,� prompting the
agency's request for information concerning the other forums complainant
chose. Complainant received the request for information on January 8,
2001. Complainant responded by letter dated January 25, 2001, noting that
he filed a retaliation claim with the Office of Special Counsel, Case
No. MA-00-2528. This matter also is referenced in the Counselor's Report.
The agency may dismiss claims for failure to cooperate, provided
the agency first makes a written request for information informing
complainant that his claims may be dismissed if he fails to respond
within fifteen calendar days, and complainant fails to respond within the
allotted time. See 29 C.F.R. � 1614.107(a)(7). If the record contains
sufficient information, the agency may adjudicate the complaint rather
than dismiss the claims for failure to cooperate. See id.
The request for information merely requested that complainant respond
within �fifteen days,� and did not specify whether the time limit would
be calculated in business days or calendar days. Complainant responded
to the agency's request within fifteen business days, as he believed
was required. Further, complainant's response reveals that the agency
already possessed the requested information in the Counselor's Report,
and the agency had adequate information to define the claims and bases
of the complaint. Given the circumstances listed above, the Commission
finds that dismissal for failure to cooperate is inappropriate.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and the complaint is
REMANDED for further investigation.
ORDER (E0900)
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 (K0501)
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 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 (M0900)
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 14, 2001
__________________
Date