01986695
09-13-2000
_____________, Complainant, v. Janet Reno, Attorney General, Department of Justice, Agency.
_____________, )
Complainant, )
)
v. )
) Appeal No. 01986695
Janet Reno, ) Agency No. B-97-2224
Attorney General, )
Department of Justice, )
Agency. )
______________________________)
DECISION
On September 11, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD), dated August 10, 1998,
pertaining to her 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.<1> The Commission accepts the appeal in accordance
with 29 C.F.R. �1614.405.
On September 3, 1996, complainant contacted the EEO office regarding
claims of discrimination based on sex (female) and reprisal. Informal
efforts to resolve complainant's concerns were unsuccessful. On December
2, 1996 complainant filed a formal complaint alleging sexual harassment
by her supervisor.
The agency dismissed complainant's complaint, citing 29 C.F.R. �1614.108.
The FAD referred to several attempts in the preceding year, by the
EEO office, to investigate complainant's complaint. The agency cited
29 C.F.R. � 1614.108(c)(3)(v) and indicated that after �more than a
reasonable number of attempts� to obtain information from complainant,
it was able to �[t]ake such other action as it deems appropriate.�
On appeal, complainant contends that the EEO investigator only contacted
her twice and failed to send written correspondence as she had requested.
Complainant admits to periods when she was too busy to provide an
affidavit to the investigator, but contends that she should have been
notified of the agency's intention to dismiss her complaint for failing
to supply the requested documents.
The Commission notes that the agency relied on 29 C.F.R. � 1614.108 in
dismissing complainant's complaint. Section 1614.108(c)(3) refers to
the investigation of complaints, and in relevant part provides:
When the complainant, or the agency against which a complaint is filed,
or its employees fail without good cause shown to respond fully and in
a timely fashion to requests for documents, records, comparative date,
statistics, affidavits, or the attendance of witness(es), the investigator
may note in the investigative record that the decision maker should...
(v) Take such other actions as it deems appropriate.
This regulation does not provide the agency with the authority to dismiss
a complaint, but instead enables investigators to recommend actions
that the decision maker may take. Given the agency's contentions that
complainant failed to respond to the investigator's attempts to obtain
information, the proper analysis is whether the complaint should be
dismissed for failure to cooperate, pursuant to 29 C.F.R. �1614.107(a)(7).
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) 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.
The Commission has 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. USPS, EEOC Request No. 05900693 (August
17, 1990); Brinson v. USPS, EEOC Request No. 05900193 (April 12, 1990).
Furthermore, only in cases where the complainant has engaged in delay or
contumacious conduct and the record is insufficient to permit adjudication
has the Commission allowed a complaint to be dismissed for failure to
cooperate. See Raz v. USPS, EEOC Request No. 05890177 (June 14, 1989);
Delgado v. USPS, EEOC Request No. 05900859 (October 25, 1990).
There is no evidence in the record that the agency complied with the
requirements of 29 C.F.R. � 1614.107(a)(7). The agency never sent a
written request for information providing fifteen (15) days to respond,
or included with the request a notice of proposed dismissal of the
complaint. When complainant raised the issue of notification of proposed
dismissal on appeal, the agency stated that it was not required to do
so because the regulatory scheme of 29 C.F.R. � 1614.108, unlike that of
29 C.F.R. � 1614.107, does not require the agency to provide complainant
notice of the intent to dismiss a complaint. We reject this argument,
and determine that dismissal of the instant complaint for failure to
cooperate required implementation of the procedure set forth in 29
C.F.R. � 1614.107(a)(7), as discussed above. Accordingly, the agency's
decision is REVERSED. The complaint is REMANDED to the agency for
further processing in accordance with this decision and the Order below.
ORDER (E0800)
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 (K0800)
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)(Supp. V 1993). 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 (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
September 13, 2000
____________________________
DATE Carlton M. Hadden,
Director Office of Federal
Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________
____________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.