01986972
08-08-2000
Coozie Britton, Jr., Complainant, v. Janice R. Lachance, Director, Office of Personnel Management, Agency.
Coozie Britton, Jr., )
Complainant, )
)
v. ) Appeal No. 01986972
) Agency No. 98-10
Janice R. Lachance, )
Director, )
Office of Personnel Management, )
Agency. )
____________________________________)
DECISION
On September 22, 1998, complainant filed a timely appeal with
this Commission from an agency decision dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of physical disability when the agency canceled his Civil
Service Annuity (CSA) for two months between May and July 1997, required
him to sign a waiver of his 30% Air Force (USAF) disability in order to
have his CSA restored, and notified him that he would have to repay the
USAF $6,348 for disability retirement benefits received.
In its decision dated August 27, 1998, the agency dismissed the complaint
for failure to state a claim. Specifically, the agency determined
that at retirement complainant had 19 years and one month of civilian
service, and, as 20 years of service were needed to receive a CSA without
using military credit, chose to use his 6 years of military service as
credit toward his CSA, which required waiver of military retirement
pay. The agency further determined that under the provisions of 5
U.S.C. �8332(c)(B)(2), complainant was not entitled to receive dual credit
for both military and civilian service unless he provided documentation
showing that he had a specific service connected disability.
In response to complainant's appeal, the agency has withdrawn its
dismissal for failure to state a claim, and instead requests that
the Commission uphold its dismissal under the regulations now found
at 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(7)),<2> for failure to cooperate.
In support of its request, the agency contends that, although it did
not cite verbatim to the regulation it proposes for dismissal, its
dismissal letter put complainant on notice that he had repeatedly ignored
requests for documentation concerning proof of a combat related injury.
The agency also contends that the agency sent a detailed letter to
complainant on June 14, 1996, requesting evidence that he sustained
a combat injury or injury caused by an instrumentality of war, an
April 7, 1997 correspondence informing him of attempts to reach him
regarding his dual compensation, and that on October 31, 1997 the EEO
Counselor requested a copy of information from the USAF indicating he
had incurred a combat injury. The agency asserts that in each case,
complainant failed to respond or provide the requested documentation.
EEOC Regulation 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.
Under the circumstances in this case, we find that the agency's proposed
dismissal under 29 C.F.R. � 1614.107(a)(7) would be improper. First,
the record indicates that although the agency made numerous unanswered
requests for information concerning whether complainant sustained a
specific service-connected disability, the requests did not contain
the necessary notice of proposed dismissal in order to dismiss the
complaint under 29 C.F.R. � 1614.107(a)(7). More importantly, however,
the agency has failed to show why the requested information was necessary
for the further processing of complainant's EEO complaint. All of the
agency's requests for information were related to the merits of whether
complainant qualified for dual service credit under the provisions of 5
U.S.C. �8332(c)(B)(2), and not information necessary for the adjudication
of his complaint. A review of the record, including complainant's formal
complaint and the EEO Counselor's report, persuades the Commission that
there is sufficient information in the record to adjudicate the complaint.
Therefore, under the circumstances, we find that the agency's dismissal
of complainant's complaint for failure to cooperate is improper.
Accordingly, the agency's decision dismissing complainant's complaint is
REVERSED. The complaint is REMANDED to the agency for further processing
in accordance with this decision and the Order below.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
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 (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 (R0400)
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:
August 8, 2000
Date Carlton M. Hadden, 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.
2The agency's November 25, 1998 response requested dismissal under
the former 29 C.F.R. � 1614.107(g), prior to the implementation of the
revised regulations.