Benjamen A. Miller, Complainant,v.Richard W. Riley, Secretary, Department of Education, Agency.

Equal Employment Opportunity CommissionAug 9, 2000
01a01937 (E.E.O.C. Aug. 9, 2000)

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.