Daniel Morris, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 28, 1999
01990486 (E.E.O.C. Oct. 28, 1999)

01990486

10-28-1999

Daniel Morris, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Daniel Morris v. Department of the Navy

01990486

October 28, 1999

Daniel Morris, )

Appellant, )

)

v. )

) Appeal No. 01990486

Richard J. Danzig, ) Agency No. 97-60258-011

Secretary, )

Department of the Navy, )

Agency. )

______________________________)

DECISION

Appellant timely filed an appeal with this Commission from a final

agency decision (FAD), dated August 28, 1998, dismissing a portion of

his complaint (allegations 4a, 4b, 4c, 4d and 4e) on the grounds that

appellant failed to cooperate.

In an EEO complaint dated October 9, 1997 appellant alleged discrimination

on the bases of race (Afro-American), color (Black), religion (Methodist),

sex (male), age (d.o.b. 3/28/45), and reprisal. By letter dated

April 24, 1998, the agency stated that appellant's allegations were

"too vague and general to be processed as a complaint" and requested

additional information. Specifically, the agency requested dates,

names of witnesses, names of the management officials who allegedly

discriminated, names of persons who received better treatment, and any

other relevant evidence or documents that would support appellant's

allegations. The agency also warned that failure to respond to the

request could result in the dismissal of appellant's allegations. In a

letter dated June 11, 1998, appellant responded to the agency's request.

The FAD dismissed a portion of appellant's complaint (allegations 4a, 4b,

4c, 4d, and 4e) pursuant to 29 C.F.R. �1614.107(g). The agency indicated

that appellant's response did not contain the requested information.

EEOC Regulation 29 C.F.R. �1614.107(g) requires an agency to dismiss

a complaint or a portion of a complaint for failure to cooperate, or,

alternatively, to adjudicate the complaint if sufficient information

for that purpose is available. The regulation is applicable under the

following circumstance: (1) the agency has provided the complainant

with a written request to provide relevant information or to otherwise

proceed with the complaint; (2) the request included a notice of the

proposed dismissal for failure to respond within 15 days of receipt of

the request; and (3) the complainant either fails to respond to the

request within 15 days of receipt or the complainant's response does

not address the agency's request. The Commission has held that the

regulation is applicable, however, only in cases where there is a clear

record of delay or contumacious conduct by the complainant. See Anderson

v. U.S. Postal Service, EEOC Request No. 05940850 (February 24, 1995).

In the instant case, we find that the agency reasonably requested

clarification of the matters raised in appellant's formal complaint.

While the agency may have determined that appellant did not provide all

the information the agency sought, appellant nevertheless attempted

to respond to the agency's request. The agency does not contend that

appellant's response was untimely. Moreover, the Commission finds that

appellant's response is not reflective of delay or contumacious conduct.

Therefore, we find that the agency improperly dismissed allegations

4a, 4b, 4c, 4d, and 4e for failure to cooperate. The Commission notes

that the agency may make an additional request for information and that

appellant's failure to comply with such a request may result in dismissal

of certain allegations for failure to cooperate.

Accordingly, the agency's decision to dismiss allegations 4a, 4b, 4c,

4d, and 4e is REVERSED. The allegations are REMANDED to the agency for

further processing in accordance with this decision and the Order below.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant 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 (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,

the appellant 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. ��1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

10/28/1999

___________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations