0120064231
11-22-2006
Cynthia L. Steele, Complainant, v. Henry M. Paulson, Jr., Secretary, Department of the Treasury, Agency.
Cynthia L. Steele,
Complainant,
v.
Henry M. Paulson, Jr.,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 0120064231[1]
Agency No. 052590N
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 18, 2006, dismissing her complaint of unlawful
employment discrimination in violation of Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
In a complaint dated August 24, 2005, complainant alleged that she was
subjected to discrimination on the basis of disability (back injury and
mass on ovaries) when her request for a hardship transfer was denied, her
detail was terminated, and when she was placed on absence without leave.
The record indicates that the agency accepted the complaint for
investigation, completed the investigation and, on February 10, 2006, sent
complainant written notification that she could request a hearing in her
case or a final decision based on the investigative report. This notice
was mailed to the address complainant had provided on her formal complaint
form. The notice was returned to the agency as undelivered because
complainant no longer lived at that address. The agency then attempted
through several mailings, telephone calls, and emails to reach complainant
to determine how she wished to proceed on her case. In this
correspondence, complainant was warned that failure to respond might result
in the dismissal of her complaint. All the correspondence was returned to
the agency as undelivered. When it was unable to contact her, the agency
dismissed the complaint for failure to cooperate. On appeal, complainant
concedes she could not be reached, but explains that during this period she
was homeless.
The regulation set forth at 29 C.F.R. � 1614.107(a)(7), in pertinent part,
authorizes dismissal of a complaint where the complainant fails to respond
to a request for information within 15 days of its receipt, 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. The Commission has held that as a general rule, an agency
should not dismiss a complaint when it has sufficient information on which
to base an adjudication. See Ross v. United States Postal Service, EEOC
Request No. 05900693 (August 17, 1990). It is only in cases where the
complainant has engaged in delay or contumacious conduct and the record is
insufficient to permit adjudication that the Commission has allowed a
complaint to be dismissed for failure to cooperate. See Card v. United
States Postal Service, EEOC Request No. 05970095 (April 23, 1998).
The Commission determines that the record shows that the agency made
numerous attempts by various methods to contact complainant to no avail.
In addition, some of this correspondence warned that her failure to respond
could result in dismissal of the complaint on the grounds of failure to
cooperate. Nonetheless, based on complainant's appeal statement that she
never received these notices because she was homeless, we determine that
her failure to respond did not represent a deliberate attempt to thwart or
delay the complaint process. Moreover, we find that the agency completed
an investigation of the complaint, and that the record is sufficient to
permit the agency to issue a decision on the merits of the case.
Accordingly, under these circumstances, we find that it is appropriate in
this case to remand the complaint to the agency to issue a decision on the
merits of the case. See Reed v. U.S. Postal Service, EEOC Appeal No.
01A05039 (January 3, 2001).
For the reasons set forth above, we REVERSE the agency's dismissal decision
and REMAND the case to the agency to issue a decision on the merits of the
case, as more fully set forth in the ORDER below.
ORDER
Within sixty (60) calendar days from the date that this decision becomes
final, the agency shall issue a final decision on the captioned complaint
in accordance with 29 C.F.R. � 1614.110. A copy of the agency's final
decision must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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) (1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 22, 2006
__________________
Date
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[1] Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.