01986594_r
10-25-1999
Brett M. Whittle, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.
Brett M. Whittle, )
Appellant, )
)
)
)
v. ) Appeal No. 01986594
) Agency No. DM-98-112
)
)
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Logistics Agency), )
Agency. )
______________________________)
DECISION
On September 1, 1998, appellant filed a timely appeal of a July 30,
1998 final agency decision, which was received by him on August 7, 1998,
dismissing his complaint, pursuant to 29 C.F.R. ��1614. 107(a) and (g),
for failure to state a claim and/or for failure to cooperate.
In its final decision, the agency identified the allegations of
appellant's May 27, 1998 complaint as whether appellant was discriminated
against when: he was denied advancement to journeyman grade, pay and
promotional opportunities by the promotion of other employees through
accretion of duties and planned management actions; he was denied
career-enhancing training; he was denied an Individual Development Plan
(IDP) while members outside his protected class were given IDPs; he was
denied the job career-enhancing projects; he was denied access to mentors;
and he was subjected to harassment by his immediate supervisor and chain
of command concerning leave requests, employee representation duties,
labor affiliation, grievance issues, congressional inquiries and EEO
complaints.
The agency stated that by letter dated June 23, 1998, appellant was
asked to clarify the allegations, and he was informed that if he failed
to provide the requested information, his complaint would be dismissed
for failure to cooperate. According to the agency, appellant's response
failed to provide all the requested information.
EEOC Regulation 29 C.F.R. �1614.107(g) provides that the agency shall
dismiss a complaint or a portion 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.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
The Commission notes that an agency's decision to invoke the provisions
of 29 C.F.R. �1614.107(g) should be made by the agency only when there
is a clear record of delay or contumacious conduct by the complainant.
Connolly v. Papachristid Shipping Ltd., et al., 504 F.2d 917 (5th
Cir. 1974). This is because implicit in the scheme of attempted control
of the evil of discrimination by administrative and judicial machinery
is a degree of cooperation by the complaining party. Jordan v. United
States, 522 F.2d 1128 (8th Cir. 1975). Accordingly, the obligation
to informally and expeditiously resolve complaints is imposed on both
parties.
The record indicates that by letter dated July 10, 1998, appellant
responded to the agency's request for clarification of his complaint.
Therein, appellant provided further information concerning the allegations
in the complaint, as well as the identity of the responsible managerial
officials. Upon review, we find that although appellant's response
did not provide everything the agency requested, i.e., concerning the
incident dates, there is no record of delay or contumacious conduct on
the part of appellant. We find, however, that further information is
needed before this complaint is processable, namely, the incident dates.
Since several of the identified discriminatory actions concern personnel
actions, the agency should have some of the dates already in its records.
Accordingly, the agency's decision is VACATED and the complaint is
REMANDED to the agency for further processing in accordance with the
Order below.
ORDER
The agency is Ordered to take the following actions:
(1) The agency shall review its records in order to obtain the relevant
incident dates for the present complaint, i.e., regarding the dates
when appellant was denied advancement to journeyman grade and pay, when
he was denied an Individual Development Plan, and any other identified
personnel action dates.
(2) The agency, within fifteen (15) calendar days of the date this
decision becomes final, shall provide appellant with the opportunity
to clarify the remanded complaint, i.e., regarding the alleged incident
dates, including the date when he was denied training. Appellant shall
be notified that he has fifteen (15) calendar days from the date of
receipt of the request within which to clarify the complaint in response
to the agency.
(3) Based on the foregoing, the agency, within forty-five (45) calendar
days of the date that this decision becomes final, shall issue a new
final decision and/or process the complaint.
A copy of the request for clarification and a copy of the agency's final
decision and/or the notice of processing for the complaint must be sent
to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
October 25, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations