01a01937
08-09-2000
Benjamen A. Miller, Complainant, v. Richard W. Riley, Secretary, Department of Education, Agency.
Benjamen A. Miller v. Department of Education
01A01937
August 9, 2000
Benjamen A. Miller, )
Complainant, )
)
v. ) Appeal No. 01A01937
) Agency No. ED-9337000
Richard W. Riley, )
Secretary, )
Department of Education, )
Agency. )
____________________________________)
DECISION
On January 3, 2000, complainant filed a timely appeal with this Commission
from an agency decision dated December 3, 1999 pertaining to 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.<1> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. �1614.405).
On February 17, 1993 complainant filed a formal complaint claiming he
suffered discrimination based on reprisal. Specifically, complainant
contended he was discriminated against when on November 16, 1992 he was
not selected for a collateral duty EEO Counselor's position.
A review of the record, establishes a complex procedural history of
the instant case. The record shows that, by letter dated May 11, 1993,
the agency presented complainant an offer of full relief. The agency
offered complainant a position as a collateral EEO Counselor, noting that
he would be required to take the Basic EEO Counseling course which would
be paid for by the EEO office. The letter also notified complainant that
failure to accept the offer within thirty days of receipt, or its refusal,
could result in dismissal of his complaint. By letter dated June 10,
1993, complainant did not accept the offer, stating that although he
was �favorably disposed toward [the agency's] settlement offer� it did
not address attorney's fees and compensatory damages.
An exchange of correspondence ensued between the agency and complainant,
regarding compensatory damages.<2> The record contains letters dated
August 24, 1993, August 4, 1994, and May 17, 1999 wherein the agency
requested specific information from complainant including the exact
type of damages, out-of-pocket costs, and proof that the damages were
caused or aggravated by the agency's alleged discriminatory actions.
On September 8, 1993 and August 23, 1994, complainant wrote to the agency
stating that he was �willing to sit down and engage in direct discussions�
but that it would be �extremely difficult, if not impossible, for [him]
to vividly express in writing the full extent of [his compensatory
damages].� Further, in an electronic message dated June 1, 1999,
complainant stated that �I have now decided to seek settlement of this
complaint exclusive of compensatory damages.�
On July 1, 1999, the agency issued the first of three decisions regarding
the instant complaint. The agency indicated that because full-time
positions for the Informal Dispute Resolution Center were approved,
collateral duty Counselors were no longer used by the EEO Group.
According to the agency, becauses there were no collateral duty Counselor
positions and complainant had withdrawn his claim for compensatory damages
(June 1, 1999 correspondence), the complaint was rendered moot.
Thereafter, on August 3, 1999, the agency notified complainant that it
was �reissuing� the July 1, 1999 decision, because crucial statements
had been omitted. The August 1999 decision maintained the agency's
dismissal for mootness, the only addition appears to be the inclusion
of relevant legal authority for the dismissal.
On July 31, 1999 Complainant appealed the agency's July 1999 decision
to the Commission (Appeal No. 01996055), arguing that the dismissal of
the complaint as moot was improper. On December 3, 1999, the agency
informed complainant that it was rescinding the August 3, 1999 decision
based on his assertion on appeal, that his June 1, 1999 e-mail was not
intended as a withdrawal of his compensatory damages claim.
On the same day, December 3, 1999, the agency issued the decision which
is the subject of the instant appeal. Therein, the agency dismissed the
complaint for failure to cooperate. Specifically, the agency determined
that on three separate occasions it had requested information regarding
complainant's compensatory damages claim, warning complainant that failure
to provide the requested information could result in the dismissal of
his complaint. The agency further determined that, although complainant
expressed his interest in resolving the matter, he failed to provide
the requested information. According to the agency, complainant was
unresponsive to its numerous requests over the last six years.
As noted, on 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. Under these revisions, the Commission deleted
the dismissal basis of failure to accept a certified offer of full relief
from the regulations. See 64 Fed. Reg. 37,644, 37,645 (1999). In other
words, agencies may no longer dismiss administrative EEO complaints due
to a complainant's failure to accept a certified offer of full relief.
Any dismissal on the grounds of failure to accept a certified offer of
full relief if now improper under the revised regulations.
In the present case, although the agency dismissed the complaint
for failure to cooperate the Commission finds that the dismissal was
predicated on the agency's offer of full relief. The record establishes
that the agency made an offer of full relief, which was not accepted by
the complainant. Complainant requested that his claim for compensatory
damages be addressed. Following efforts to resolve the compensatory
damages claim, the agency dismissed the complaint for failure to
prosecute. The failure to cooperate stems from the agency's efforts to
offer full relief. Therefore, in light of the revised regulations, we
find that the agency's decision must be VACATED and the complaint REMANDED
for further processing in compliance with the revised EEOC Regulations.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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 (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:
August 9, 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 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.
2As noted by the agency, there is no record that complainant was
represented by an attorney. Accordingly, attorney's fees are not at
issue.