01a02823
07-19-2000
Carson Buchanan, Jr., Complainant, v. William S. Cohen, Secretary, Department of Defense, (Defense Commissary Agency) Agency.
Carson Buchanan, Jr. v. Department of Defense (Defense Commissary
Agency)
01A02823
.
Carson Buchanan, Jr.,
Complainant,
v.
William S. Cohen,
Secretary,
Department of Defense,
(Defense Commissary Agency)
Agency.
Appeal No. 01A02823
Agency No. 98-DEAN-AE-034
Hearing No. 120-99-6636X
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dismissing his complaint of unlawful employment discrimination
brought under Section 501 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791 et seq.<1> We accept the appeal pursuant to 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
The record shows that after unsuccessful EEO counseling, complainant
filed a formal complaint on August 18, 1998. In his complaint,
complainant alleges that he was subjected to discrimination on the
basis of disability when he was suspended from June 23, 1998, to June 27,
1998. After investigating the complainant, the agency provided complainant
with a copy of the investigative report on May 4, 1999, along with notice
of the right to request a hearing before an EEOC Administrative Judge
(AJ) or a final agency decision. Complainant timely requested a hearing
before an AJ.
The record reflects that the agency attempted to contact complainant
by both telephone and letter to inform him of a pre-hearing conference
that was scheduled for September 13, 1999. When the agency determined
that the phone number on the complaint was not in service, the phone
company was contacted. However, a working phone number could not be
obtained for complainant.
The agency submitted a Motion to Dismiss the complaint to the AJ. On
September 28, 1999, the AJ issued an Order of Dismissal, indicating that
complainant was mailed an Acknowledgment and Order and a Notice of Hearing
(and of pre-hearing) and that neither document was returned. The Order
also noted that complainant did not respond or make himself available
for the September 13, 1999, tele-conference, and that he did not contact
the EEOC or agency regarding this matter. The Order further indicated
that the agency was available and attempted to proceed.
By letter dated October 19, 1999, the agency informed complainant of
its attempts to contact him, and of the AJ's Order to Dismiss. The
agency notified him that unless he responded within 15 calendar days,
the agency would implement the dismissal. When the complainant did not
respond to the proposed dismissal, the agency issued its final decision
dated January 11, 2000, adopting the AJ's Order to Dismiss.
Complainant makes no statement on appeal. The agency requests that the
Commission affirm its FAD.
Under 64 Fed. Reg. 37,644, 37,657 (1999)(to be codified and hereinafter
referred to as EEOC Regulation 29 C.F.R. � 1614.109(b)), an AJ may dismiss
complaints pursuant to 29 C.F.R. � 1614.107, on their own initiative,
after notice to the parties, or upon an agency's motion to dismiss a
complaint.
29 C.F.R. 1614.107(a)(6) permits complaint dismissal where the complainant
cannot be located. The provision requires that the agency make reasonable
efforts to locate the complainant and inform the complainant that he
must respond to the agency's notice of proposed dismissal within 15
days sent to his last known address. See EEOC Management Directive 110
(5-23), as revised, November 9, 1999.
Here, we find that the AJ's dismissal of the instant complaint was proper
because the agency made multiple attempts to contact complainant at
the address and phone number he provided, even going to extra measure
of contacting the phone company for a valid number. The agency also
provided him with the required 15 day notice of proposed dismissal,
but complainant did not respond. Even on appeal complainant fails to
provide an explanation for his failure to respond or why he did not
provide the agency with changes to his phone number or address.<2>
Accordingly, we find that the agency's final decision was proper and 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 19, 2000
__________________
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.
2We note that the address reflected on the appeal (EEOC Form 573) is
different than the address provided by complainant to the agency. In this
regard, we further note that it is the complainant's obligation to provide
the agency with notice of any changes to his address or phone number.