Brett M. Whittle, Complainant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionJul 24, 2000
01a02474 (E.E.O.C. Jul. 24, 2000)

01a02474

07-24-2000

Brett M. Whittle, Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Brett M. Whittle, )

Complainant, )

)

v. ) Appeal No. 01A02474

) Agency No. 98-112

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Logistics Agency), )

Agency. )

____________________________________)

DECISION

Based on a review of the record, we find that the agency properly

dismissed complainant's complaint for failure to cooperate.<1>

Complainant alleged that he was subjected to discrimination on the

bases of race (African-Mexican-American), color (brown), sex (male),

age, and in reprisal for prior EEO activity when:

Complainant was denied advancement to journeyman grade, pay and

promotional opportunities by the promotion of other employees through

accretion of duties and planned management actions;

Complainant was denied career-enhancing training;

Complainant was denied an Individual Development Plan (IDP) when members

outside the protected class were given an IDP;

Complainant was denied on-the-job career-enhancing projects;

Complainant was denied access to mentors; and

Complainant was subjected harassment by his immediate supervisor and

chain-of-command concerning leave requests, employee representation

duties, labor affiliation, grievance issues, congressional inquiries,

and EEO complaints.

These claims were the subject of a prior appeal, EEOC Appeal No. 01986594.

The Commission remanded an agency decision to dismiss the claims for

failure to cooperate, because complainant clarified his claims as

requested by the agency. See Whittle v. Department of Defense, EEOC

Appeal No. 01986594 (October 25, 1999). Nonetheless, the Commission

found insufficient information to adjudicate the complaint; and we ordered

the agency review its own files and allow complainant an opportunity to

provide incident dates.

By letter dated December 3, 1999, the agency requested that complainant

provide the date on which his claims occurred. The letter informed

complainant that his failure to respond could result in dismissal of

his complaint. Complainant responded by phone on December 9, 1999,

explaining that he would be on vacation in �the Hamptons� for the

entire month of December, and therefore would be unable to respond

to the agency's request. The agency sent complainant two separate

correspondence, dated December 10, 1999 and December 16, 1999, informing

complainant that his request for an extension would not be granted.

In its January 10, 2000 decision, the agency dismissed the claims for

failure to cooperate. The agency noted that it was unable to determine

the dates from its own files, and complainant failed to respond to

requests for information. On appeal, complainant argues that the agency

purposefully waited until December to request information, when �most

federal employees schedule their �use or lose' leave. . . .�

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.

As noted in our previous decision, the file lacked sufficient information

for further processing. Complainant's vacation does not justify tolling

the time limitation. Accordingly, the agency's dismissal 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:

July 24, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.