Daniel F. Fraley, Complainant,v.Michael B. Mukasey, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionJan 27, 2009
0120090224 (E.E.O.C. Jan. 27, 2009)

0120090224

01-27-2009

Daniel F. Fraley, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.


Daniel F. Fraley,

Complainant,

v.

Michael B. Mukasey,

Attorney General,

Department of Justice,

Agency.

Appeal No. 0120090224

Agency No. M070011

DECISION

Complainant filed an appeal with this Commission from the agency's

decision dated September 22, 2008, dismissing his 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. and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds

that complainant's complaint was improperly dismissed.

In his complaint, complainant alleged that he was subjected to

discrimination on the bases of disability and age (59) when he was not

selected for several Airplane Pilot positions. Complainant details

interviews and people that he spoke with regarding interviews and his

applications.

The agency commenced an investigation on the complaint and, on November

26, 2007, sent complainant a request for an affidavit along with

instructions and forms for completing the affidavit. In its September

22, 2008 final decision, the agency dismissed the complaint pursuant

to 29 C.F.R. � 1614.107(a)(7) for failure to cooperate, arguing that

complainant failed to return the requested affidavit despite a written

warning in the affidavit packet sent to him that failure to provide the

affidavit could result in the dismissal of his complaint.

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 fifteen 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. Generally, the

Commission has held that an agency should not dismiss a complaint when it

has sufficient information upon which to base an adjudication. See Ross

v. United States Postal Service, EEOC Request No. 05900693 (August 17,

1990); Brinson v. United States Postal Service, EEOC Request No. 05900193

(April 12, 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 as allowed a complaint to be dismissed

for failure to cooperate. See Card v. United States Postal Service,

EEOC Request No. 05970095 (April 23, 1998); Kroeten v. United States

Postal Service, EEOC Request No. 05940451 (Dec. 22, 1994).

In the instant case, we find that there is insufficient evidence in

the record to support a conclusion that he purposely engaged in delay

or contumacious conduct. Instead, we find that there was sufficient

information in the record to have permitted the agency to have continued

the investigation (by collecting evidence from management witnesses and

those involved with the selection process) without complainant's affidavit

to permit an adjudication on the merits. A review of the record indicates

that complainant submitted a detailed complaint and also spoke with

the agency's EEO counselor assigned to his case and provided extensive

information as detailed in the EEO counselor's report. The information

provided on complainant's claims was sufficient to identify the specific

agency actions he is concerned with, the relevant timeframes and the

responsible management officials. This is sufficient information to permit

management witnesses to respond to complainant's allegations. See Hearl

v. United States Postal Service, EEOC Appeal No. 0120082505 (July 28,

2008). Whether or not these statements by complainant provide sufficient

evidence to support his claim of discrimination can be addressed in an

adjudication of the merits of his complaint.

Accordingly, we conclude that the agency should have completed its

investigation of the complaint without complainant's affidavit and

allowed for an adjudication on the merits rather than dismissing the

complaint. The complaint is hereby remanded to the agency for further

processing in accordance with this decision and the Order below.

ORDER (E0408)

The agency is ordered to process the remanded claims in accordance with 29

C.F.R. � 1614.108 et seq. 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 (K1208)

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 77960, Washington,

DC 20013. 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 (M1208)

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 77960,

Washington, DC 20013. 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 (R0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

January 27, 2009

__________________

Date

2

0120090224

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120090224