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.