0120161941
09-09-2016
Brant C.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Brant C.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120161941
Agency No. 200P-0644-2013104635
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated June 3, 2016, dismissing a formal 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
On October 17, 2013, Complainant, a job applicant for employment at the Agency's Phoenix, Arizona Veterans Affairs Health Care System, filed the instant formal complaint. Complainant alleged that he was discriminated against on the bases of disability, age and in reprisal for prior activity when:
a. in December 2012, he was notified of his nonselection for the position of Medical Support Assistant, advertised under Vacancy Announcement No. T-38-12-813452/B3;
b. in December 2012, he was notified that he was not referred for the position of Medical Support Assistant, advertised under Vacancy Announcement No. T-38-12-812943/B3;
c. in February 2013, he was notified of his nonselection for the position of Medical Support Assistant, advertised under Vacancy Announcement No. T-38-12-795685/AB9;
d. in March 2013, he was notified of his nonselection for the position of Medical Support Assistant, advertised under Vacancy Announcement No. 73814-ABB-864999; and
e. on March 26, 2013, he was notified of his nonselection for the position of Medical Support Assistant, advertised under Vacancy Announcement No. T-38-13-ABB-864981/B3.
After the investigation of the formal complaint, Complainant was provided with a copy of the report of investigation and with a notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing.
However, the AJ issued a document entitled "Order of Dismissal" dated April 26, 2016, dismissing Complainant's hearing request. The AJ found that Complainant had not complied with the AJ's orders. Specifically, the AJ set an Initial Scheduling conference for September 2, 2015, but Complainant failed to appear and all efforts to locate Complainant were unsuccessful. As a result, the AJ issued a Show Cause Order to Complainant requiring him to show cause why his hearing request should not be dismissed. In his November 1, 2015 response, Complainant requested a 60-day extension in order to obtain counsel. The AJ granted Complainant an extension until January 15, 2016, to obtain counsel but placed him on notice that if he was unable to retain counsel, he would either have to withdraw his hearing request or proceed without representation.
The AJ had not heard from Complainant by April 2016, and the AJ issued a second show Cause Order to Complainant dated April 7, 2016, in which she again required Complainant to notify her by April 19, 2016 of his intent to proceed. The second Show Cause Order also gave Complainant instructions on how to proceed in terms of notifying Agency counsel about his intent to proceed and setting up a new date for the Initial Scheduling conference. The second Show Cause Order also placed Complainant on notice that if he did not contact the AJ by April 19, 2016, his hearing request would be dismissed and the matter would be proceed to the Agency for a final agency decision. The record reflects that the AJ sent the second Show Cause Order by mail to Complainant's last known mailing address and by emailing it to him on April 7, 2016. When Complainant failed to respond by April 26, 2016, the AJ issued the Order of Dismissal which dismissed his hearing request and remanded the complaint to the Agency for issuance of an Agency final decision.
Consequently, the Agency issued the instant final decision on June 3, 2016, pursuant to 29 C.F.R. � 1614.110(b).
In its final decision, the Agency dismissed the formal complaint for failure to cooperate, pursuant to 29 C.F.R. � 1614.107(a)(7). The Agency stated that on May 5, 2016, its Office of Employment Discrimination Complaint Adjudication sent a notification to Complainant, informing him that failure to comply with its request for verification of contact information within fifteen (15) days of receipt could result in the dismissal of the claims. However, the Agency never received a response. Therefore, the Agency issued the dismissal decision.
The instant appeal followed.
ANALYSIS AND FINDINGS
The Commission has held that an Agency should not dismiss a complaint when it has sufficient information upon which to base an adjudication. See Ross v. United States Postal Service, EEOC Request No. 05900693 (August 17, 1990); Brinson v. United States Postal Service, EEOC Request No. 05900193 (April 12, 1990). It is only in cases where the Complainant has engaged in delay or contumacious conduct and the record is insufficient or permit adjudication that the Commission has allowed a complaint to be dismissed for failure to cooperate. See Card v. United States Postal Service, EEOC Request No. 05970095 (April 23, 1998); Kroten v. United States Postal Service, EEOC Request No. 05940451 (December 22, 1994).
A fair reading of the record reflects that Complainant did not expressly engage in delay or contumacious conduct in regard to the processing of the instant complaint. Moreover, regarding the sufficiency of the instant record, we note that the Agency has already conducted an investigation into the merits of Complainant's claim of discrimination when he was not selected for any of the five Medical Support Assistant positions for which he had applied. Therefore, we find that the Agency should have issued a decision on the merits based on the evidence gathered during the investigation rather than dismissing the formal complaint for failure to cooperate.
The Agency final decision dismissing the formal complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to resume processing of the underlying complaint from the point where processing ceased. Within sixty (60) calendar days from the date this decision becomes final, the Agency shall issue a final decision on the merits of Complainant's claims pursuant, 29 C.F.R. � 1614.110(b), including notice of all appropriate appeal rights.
A copy of the final decision must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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) (1994 & Supp. IV 1999). 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
September 9, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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