01a11658
02-02-2001
Amar Gueye, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Amar Gueye v. Department of Commerce
01A11658
February 2, 2001
.
Amar Gueye,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A11658
Agency No. 00-63-00355D
DECISION
The agency, Bureau of Census, and the Equal Employment Opportunity
Commission (EEOC) entered into a Memorandum-of-Understanding (MOU)
to govern complaints filed by decennial census workers. Pursuant to
this MOU, the EEOC's Washington, D.C. Field Office determined whether to
accept the complaint, conducted settlement negotiations, and returned the
complaint to the agency for investigation. In his complaint, complainant
alleged discrimination on the bases of race (African-American), color
(black), national origin (Senegalese), religion (Muslim), and in reprisal
for prior EEO activity when he was harassed, denied a transfer, denied a
religious accommodation, and demoted. The agency attempted to conduct
its investigation, but ultimately dismissed the complaint for failure
to cooperate by decision dated October 18, 2000.
The record reveals that the investigator attempted to contact complainant
many times by phone. When unsuccessful, she mailed complainant
interrogatories on three separate occasions. These mailings informed
complainant that failure to respond within fifteen days of receipt could
result in dismissal. Complainant sent two letters requesting information
from the agency (a copy of the notice of acceptance and the names of
�interested parties�), but never addressed the interrogatories.
The agency may dismiss complaints for failure to cooperate under certain
circumstances. See 29 C.F.R. � 1614.107(a)(7). Prior to such dismissals,
the agency must request relevant information in writing. This request
must inform complainant that his failure to respond, or failure to address
the agency's request, may result in dismissal of the complaint. However,
dismissal is inappropriate if the file contains sufficient information
to adjudicate the claim.
The record includes a copy of the cover letters sent with the
interrogatories. The interrogatories themselves were not included in the
file. A review of the record reveals that complainant provided a detailed
description of his claims in counseling, his formal complaint, and in
an affidavit. When complainant failed to respond to the interrogatories,
the investigator concluded her investigation without interviewing other
witnesses or gathering any other information. Further, the agency never
showed what information it requested, why the information was relevant,
or why it could not adjudicate the claims without the information.
Without such evidence, the Commission cannot find that dismissal for
failure to cooperate was proper.
CONCLUSION
Accordingly, the Field Office's dismissal is REVERSED, and the claim is
REMANDED for further investigation as provided herein.
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 (K0900)
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 (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
February 2, 2001
__________________
Date