01a01018
02-08-2000
Charles H. Genrich, Complainant, v. James Lee Witt, Director, Federal Emergency Management Agency, Agency.
Charles H. Genrich, )
Complainant, )
)
v. ) Appeal No. 01A01018
)
James Lee Witt, )
Director, )
Federal Emergency Management )
Agency, )
Agency. )
_______________________________ )
DECISION
Complainant filed an appeal with this Commission from an agency decision
dated September 3, 1999 purportedly dismissing complainant's complaint
of employment discrimination for failure to cooperate during the
pre-complaint counseling process.<1>
The agency found that complainant initially contacted an EEO Counselor
on March 19, 1999. The agency found that despite repeated attempts by
the agency's EEO office to arrange a time to meet for EEO counseling,
complainant failed to attend a counseling meeting until August 25, 1999.
The agency stated that complainant canceled numerous appointments
and failed to attend scheduled counseling sessions without notifying
the agency that he would not be attending such scheduled meetings.
The EEO Counselor's Report indicates that a notice of right to file a
discrimination complaint was issued on August 31, 1999. There is no
indication that complainant ever filed an EEO complaint on the instant
matter.
The agency may not dismiss a complaint that has not been filed. There is
no complaint until a complaint is filed. In the instant circumstance,
we find that the agency has effectively notified complainant that it
will not further process the matter for which he sought EEO counseling.
The regulation set forth at 64 Fed. Reg. 37,644, 37656 (to be codified as
and hereinafter cited as 29 C.F.R. � 1614.107(a)(7)) provides that the
agency shall dismiss a complaint for failure to cooperate. If there
is no complaint, then the matter can not be dismissed pursuant to �
1614.107(a)(7). Therefore, we find that the agency improperly dismissed
the instant matter.
The Commission shall order the agency to reissue the notice of the
right to file a complaint pursuant to the regulation set forth at 64
Fed. Reg. 37,644, 37656 (to be codified as and hereinafter cited as
29 C.F.R. � 1614.105(d)). The Commission notes that an agency should
not extend the counseling beyond thirty days if an aggrieved person
does not agree to a longer counseling period and does not choose an
alternative dispute resolution procedure. 29 C.F.R. � 1614.105(d).
Under such circumstances the agency shall inform the aggrieved person,
no later than the thirtieth day after the contact with the counselor,
of the right to file a discrimination complaint. Id.
The agency's decision dismissing the complaint is REVERSED and we REMAND
the matter to the agency for further processing in accordance with this
decision and applicable regulations.
ORDER
The agency shall, within 15 days of the date this decision becomes final,
issue to complainant the notice of the right to file a complaint in the
instant matter pursuant to � 1614.105(d). A copy of the notice of the
right to file a complaint shall be sent to the Compliance Officer as
referenced herein.
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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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:
February 8, 2000
DATE
Carlton
M.
Hadden,
Acting
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.