01992347_r
11-05-1999
Wilburn E. Ray, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Wilburn E. Ray, )
Appellant, )
)
v. ) Appeal No. 01992347
) Agency No. 98-69232-011
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his 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., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. The final agency decision was
issued on December 21, 1998. The appeal was postmarked January 29, 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.<1>
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 16, 1997.
On March 4, 1998, appellant filed a formal EEO complaint wherein he
alleged that he had been discriminated against on the bases of his race
(white), sex (male), and physical disability (back injury) when:
1. Management failed to accommodate him by providing him with an
appropriate permanent position following his on-the-job injury which
occurred in November 1995. Appellant claimed that the position he
accepted on March 2, 1998, Facilities Inspection Specialist (General)
(GS-1601-09) should have been offered at an earlier date, and the salary
and grade level should be higher.
2. Management failed to accommodate appellant by providing him with an
appropriate permanent position, when he was offered a Clerk (GS-303-03)
position in the Public Works Department on August 1, 1997.
3. Appellant has been subjected to a pattern of harassment and a
hostile work environment by the Superintendent of Public Works and
another employee in the Public Works Department, as well as personnel
in the Human Resources Department, since his participation in a criminal
investigation in 1990.
In support of his claim with regard to allegation 3, appellant, in
his informal complaint, referenced a letter dated August 19, 1997,
from the Department of Human Resources' Injury Compensation Program
Administrator to the Office of Workers Compensation Programs (OWCP).
The letter contained a request that appellant's entitlement for
compensation due to work-related injuries be terminated for refusal
to accept suitable employment. Appellant stated that he was further
harassed when on November 10, 1997, he received an agency proposal to
demote him to the position of Clerk, GS-303-03, on the grounds that he
is unable to meet the physical requirements of his position.
In its final decision, the agency dismissed allegation 2 of appellant's
complaint on the grounds that appellant failed to contact an EEO Counselor
in a timely manner. Allegation 1 was accepted for investigation.
With regard to allegation 3, the agency determined that appellant had not
been sufficiently precise in describing the actions or practices that
form the basis of the allegation. According to the agency, appellant
failed to provide any specificity as to the dates of the incident(s),
a description of the incident(s), the names of the parties involved,
the identity of any witnesses, etc. The agency noted that appellant
failed to provide such information despite the EEO Counselor's request.
The agency formally requested that appellant provide this information
within fifteen days of his receipt of the final decision. The agency
stated that failure to do so would result in dismissal of allegation 3.
On appeal, appellant contends that his complaint states a continuing
violation. Appellant also claims that he was not familiar with the EEO
process. According to appellant, agency EEO officials led him to believe
he could file a discrimination complaint at any time due to the continuing
nature of management's actions. Appellant argues that an agency official
in the Department of Human Resources and his superiors worked in concert
to deprive him of his Workers' Compensation and employment rights.
On April 22, 1999, the agency rescinded its final decision. In a new
final decision, the agency accepted allegation 2 for investigation.
The agency dismissed allegation 3 on the grounds that appellant failed
to cooperate. The agency determined that appellant failed to respond to
a request for more information. The agency noted that in its previous
decision, appellant was requested to provide information specifying
dates of alleged incident(s), a description of the alleged incident(s),
the names of the parties involved, the identity of witnesses, etc.
According to the agency, by letters dated January 13, 1999 and February
10, 1999, appellant sought extensions of the fifteen-calendar-day time
frame to provide such information. The agency stated that no such
information was subsequently provided.
In response to the instant appeal, the agency asserts that despite
appellant's claim of harassment, appellant has continually failed to
provide any specificity as to what other specific acts are involved.
The agency maintains that insufficient information exists to allow for
proper review of this allegation.
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
allegation 3 of appellant's complaint concerning appellant being subjected
to a pattern of harassment and a hostile work environment. Upon review of
the record, we observe that appellant identified the following incidents
of alleged harassment: appellant referenced a letter dated August 19,
1997, from the Department of Human Resources' Injury Compensation Program
Administrator to the Office of Workers Compensation Programs (OWCP)
wherein it was requested that his entitlement for compensation due to
work-related injuries be terminated for refusal to accept suitable
employment; on November 10, 1997, he received an agency proposal
to demote him to the position of Clerk, GS-303-03, on the grounds
that he is unable to meet the physical requirements of his position;
and that an agency official in the Department of Human Resources and
his superiors worked in concert to deprive him of his OWCP rights.
These incidents appear to represent at least part of the claim set forth
in allegation 3. 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). While appellant filed to
specifically respond to the agency's request, despite twice requesting
extensions to respond, we find that the record contains sufficient
information identifying the actions which appellant believes constituted
discriminatory harassment. Accordingly, the agency's decision to dismiss
allegation 3 on the grounds of failure to cooperate was improper and
is REVERSED. Allegation 3, as clarified herein, is hereby REMANDED for
further processing in accordance with the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation (Allegation 3)
in accordance with 29 C.F.R. �1614.108. The agency shall acknowledge to
the appellant that it has received the remanded allegation (Allegation 3)
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 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations1The record does not establish when
appellant received the final agency decision. Absent evidence to
the contrary, we find that the instant appeal was timely filed.