Anthony Claiborne, Complainant,v.F. Whitten Peters, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionSep 27, 2000
01a03615 (E.E.O.C. Sep. 27, 2000)

01a03615

09-27-2000

Anthony Claiborne, Complainant, v. F. Whitten Peters, Secretary, Department of the Air Force, Agency.


Anthony Claiborne v. Department of the Air Force

01A03615

September 27, 2000

.

Anthony Claiborne,

Complainant,

v.

F. Whitten Peters,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 01A03615

Agency No. RX1M00-042

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated February 28, 2000, dismissing his 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.<1> The

appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be

codified at 29 C.F.R. � 1614.405).

For the relevant period of time, complainant was employed by the

Department of the Air Force as a GS-9 production controller. On January

11, 2000, complainant filed a formal complaint claiming that he was the

victim of unlawful employment discrimination on the bases of his race

(African-American) and his sex (male). The formal complaint made a

general reference to claims of discrimination including but not limited

to promotions, reassignments, details, temporary assignments, annual

and periodic appraisals, performance plans and disciplinary actions.

On February 28, 2000, the agency issued a final decision dismissing the

present complaint for failure to cooperate. Specifically, on January 28,

2000, the agency sent a second request for information to complainant

to clarify his complaint filed on January 11, 2000. Furthermore, the

request informed complainant that if he failed to respond within fifteen

(15) days after receipt of the request, or if his response failed to

address the agency's request, his complaint could be dismissed for

failure to cooperate. Complainant responded to the request by letter

dated February 15, 2000. However, according to the agency, the response

did not address the agency's request. Consequently, the agency dismissed

the complaint for failure to cooperate.

The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be

codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(7)) provides for

the dismissal 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 regulation further provides

that, instead of dismissing for failure to cooperate, the complaint may

be adjudicated if sufficient information for that purpose is available.

Under the circumstances in this case, we find that the agency's dismissal

was proper. The record indicates that on January 31, 2000, complainant

received a memorandum from the agency requesting that he respond to a

request for information, and indicating that failure to address the

agency request or failure to respond within 15 days would result in

dismissal of his complaint. The Commission finds that complainant failed

to address the agency's request and provide information to clarify the

claims within his complaint. The Commission finds that the complaint

is vague and that there is insufficient information in the record to be

able to define the complaint and accept it for investigation. Moreover,

we note that complainant's complaint, along with the EEO Counselor's

Report, did not address any specific incidents of alleged discrimination,

with reference to the responsible agency official by name or the date

on which the incidents occurred.

Therefore, we find that the agency's dismissal of complainant's complaint

for failure to cooperate was proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (S0400)

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

September 27, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this 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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.