01986907
01-18-2000
Dee J. Tucker v. Department of Justice
01986907
January 18, 2000
Dee J. Tucker, )
Complainant, )
)
v. ) Appeal No. 01986907
) Agency No. I-96-8039
Janet Reno, )
Attorney General, )
Department of Justice, )
Agency. )
____________________________________)
DECISION
On September 21, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dated August 26, 1998,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. and 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 bases of national
origin (Hispanic), religion (Catholic), physical disability, and mental
disability when:
Complainant was continually subjected to unspecified acts of harassment
and demeaning treatment by unnamed supervisors and co-workers;
Complainant was threatened with suspension and removal by the Chief
Detention Enforcement Officer;
Complainant was removed as Tactical Intervention and Control Unit
Commander by the Chief Detention Enforcement Officer; and
Complainant was charged with leave-without-pay (LWOP) for time taken
to recover from a work-related injury.
The agency dismissed complainant's entire complaint for untimely counselor
contact and failure to cooperate. Specifically, the agency found that the
most recent discriminatory act occurred on March 29, 1996, ninety-three
(93) days before complainant contacted an EEO Counselor on July 1, 1996.
Further, the agency found that complainant failed to respond to a letter
dated March 13, 1997, asking him to explain, inter alia, his delay in
contacting an EEO Counselor. The letter informed complainant that his
failure to respond within fifteen (15) days could result in dismissal
for failure to cooperate.
Complainant's physician filed this appeal on complainant's behalf.
The physician explained that complainant was unable to respond to
the agency's letter because he was (and is presently) confined in a
Rehabilitation Center to treat an addiction to prescription pain killers.
The letter explained that complainant was not allowed to make or receive
any contact with the outside world during his stay at the center.
The record includes a copy of the Counselor's Report, dated September
26, 1996, which indicates that complainant initially contacted an
EEO Counselor on July 1, 1996. The record also contains a Notice of
Proposed Removal, dated May 20, 1996. In his formal complaint, however,
complainant lists the most recent discriminatory incident as having
occurred on March 29, 1996, and also notes that he was "terminated"
September 9, 1996.
EEOC Regulations provide 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, provided that the request included a notice of the proposed
dismissal. See 64 Fed. Regulation. 37,644, 37,656 (1999)(to be codified
and hereinafter cited as 29 C.F.R. �1614.107(a)(7)). 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 dismissal
for failure to cooperate was improper. The Commission only allows
dismissal for failure to cooperate where the complainant has engaged in
delay or contumacious conduct and the record is insufficient to permit
adjudication. See Card v. United States Postal Service, EEOC Request
No. 05970095 (Apr. 23, 1998); Kroeten v. United States Postal Service,
EEOC Request No. 05940451 (Dec. 22, 1994). Further, the Commission
has consistently granted an extension of time limitations in cases
involving physical or mental health difficulties where an individual
is so incapacitated by his condition that he is unable to meet the
regulatory time limits. See Maddux v. United States Postal Service,
EEOC Request No. 05980302 (Aug. 5, 1999) (psychiatrist's statement that
complainant's mental condition rendered her unable to comprehend her legal
rights and responsibilities found sufficient to justify extension of time
limit); Sohal v. United States Postal Service, EEOC Request No. 05970461
(Apr. 24, 1997); but cf. Crear v. United States Postal Service, EEOC
Request No. 05920700 (Oct. 29, 1992) (complaints of decreased mental
and physical capacity, without medical evidence of incapacity, does not
warrant extension of time limits).
In the present case, complainant clearly was unable to respond to
the agency's request. According to his physician, complainant was
not allowed to make contact with anyone outside the treatment center
during the relevant time period. Accordingly, the agency's dismissal
for failure to cooperate was improper.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is
not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The record reflects that the most recent incident occurred on May
20, 1996, when the agency proposed to dismiss complainant. Further,
complainant contends that he subsequently was terminated on September
9, 1996. The Commission finds that complainant contacted a counselor
on July 1, 1996, within forty-five days of the most recent incident.
Accordingly, complainant's claim of harassment from being threatened
with suspension and removal should not have been dismissed for untimely
counselor contact.
It is well-settled that where, as here, there is an issue of timeliness,
"[a]n agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness."
Williams v. Department of Defense, EEOC Request No. 05920506 (August
25, 1992). Moreover, where, as here, a complainant alleges recurring
incidents of harassment, "an agency is obligated to initiate an inquiry
into whether any claims untimely raised fall within the ambit of the
continuing violation theory." Guy v. Department of Energy, EEOC Request
No. 05930703 (January 4, 1994) (citing Williams). As the Commission
further held in Williams, where an agency's final decision fails
to address the issue of continuing violation, the complaint "must be
remanded for consideration of this question and issuance of a new final
agency decision making a specific determination under the continuing
violation theory." In the present case, complainant alleged an ongoing
series of harassing incidents. Accordingly, the agency must determine
on remand whether complainant's remaining allegations comprise part of
a continuing violation when considered with complainant's suspension.
CONCLUSION
Accordingly, the agency's dismissal of claim (2) is REVERSED, and the
claim is REMANDED for further processing. Further, the agency's dismissal
of claims (1), (3), and (4) is VACATED.
ORDER
The agency is ORDERED to perform the following:
The agency must conduct a supplemental investigation to determine
whether the incidents raised in (1), (3), and (4), when considered in
light of complainant's timely claim, should be considered timely under
the continuing violation theory.
Within forty-five (45) calendar days of the date this decision becomes
final, the agency must issue a new notice of processing accepting claim
(2) for investigation, and determining whether the matters raised in (1),
(3), and (4) will be investigated. If the agency determines that the
incidents raised in (1), (3), and (4) should not be investigated, it must
explain the reasons for its determination. Thereafter, the agency shall
conduct an investigation of the accepted claim(s) as provided under EEOC
Regulation 64 Fed. Reg. 37,644, 37,656-37,657 (1999) (to be codified as
29 C.F.R. �1614.108), and must submit a copy of the investigation along
with the appropriate rights to the complainant within 150 days of the
date this decision becomes final.
The agency shall submit a copy of the notice of processing addressing
all of complainant's claims to the Compliance Officer as provided 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 (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:
January 18, 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 Equal Employment Assistant
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.