Edgar Bush, Appellant,v.Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionNov 8, 1999
01994438 (E.E.O.C. Nov. 8, 1999)

01994438

11-08-1999

Edgar Bush, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Edgar Bush, )

Appellant, )

)

v. ) Appeal No. 01994438

) Agency No. 200H-0642-982316

Togo D. West, Jr., )

Secretary, )

Department of Veterans )

Affairs, Agency. )

______________________________)

DECISION

On May 6, 1999, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) which was issued on April 9, 1999,

pertaining to a 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. The Commission accepts appellant's appeal in

accordance with EEOC No. 960, as amended.<1>

The record reflects, that on July 22, 1998, appellant initiated contact

with an EEO Counselor. During the counseling period, appellant alleged

that he was being unlawfully discriminated against when his supervisor

harassed him by: not approving a leave request without documentation

on July 20, 1998 (which was subsequently approved upon receipt of

the doctor's note), going behind his back and approving overtime for

appellant's subordinates without his knowledge, and by asking appellant's

subordinates about appellant's work ethics. It should be noted, that

throughout the entire precomplaint period, appellant was unable to

articulate a basis for the alleged harassment.

However, on August 17, 1998, appellant filed a formal EEO complaint

alleging that he was the victim of unlawful employment discrimination

on the basis of reprisal. Appellant's complaint was comprised not only

of the matters for which he underwent counseling, (discussed above)

but appellant also raised issues that were not brought to the attention

of the EEO Counselor. Specifically, alleged harassment on July 6, 1998,

May 4, 1998 and May 20, 1998 and time and attendance on July 2, 1998 and

August 4, 1998, for which appellant supplied no additional information.

Upon receipt of appellant's formal complaint, the agency requested

additional information as per the new allegations, by letter dated March

8, 1999 sent certified mail. After requesting an extension to submit

the additional information, by letter dated March 22, 1999, appellant

neglected to do so. Instead, appellant, by letter dated March 30, 1999,

requested a hearing before an Administrative Judge.

On April 9, 1999, the agency issued a final decision, dismissing

appellant's complaint for failure to raise all issues with an EEO

Counselor and for failure to cooperate, with respect to alleged harassment

on May 4, 1998, May 20, 1998, July 6, 1998 and time and attendance on July

2, 1998 and August 4, 1998. The agency further dismissed appellant's

allegations of harassment on or about July 9, 1999 and the allegation

of time and attendance for July 20, 1998 for failure to state a claim.

EEOC Regulation 29 C.F.R. 1614.107(g) requires that when an 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 within 15 days of its receipt or the complainant's

response does not address the agency's request provided that the request

include a notice of the proposed dismissal the agency may dismiss the

complaint or a portion

thereof. The Commission has held, as a general rule, that when a

complainant has engaged in delay or contumacious conduct and the

record is insufficient to permit adjudication the agency may cancel the

complaint for failure to cooperate. See, Arturoc Raz v. United States

Postal Service, EEOC Request No. 05890177 (June 14 1989).

In the case at bar, the agency submitted to appellant a letter dated March

8, 1999 requesting additional information necessary to investigate the

allegations along with a statement notifying appellant that if he does

not supply the referenced information, his complaint may be dismissed.

Initially, appellant responded seeking a week extension to submit the

requested information by letter dated March 22, 1999. However, the

information was never submitted. Rather, appellant submitted a letter

dated March 30, 1999 requesting a hearing before an Administrative

Judge. On appeal, appellant proffers no explanation for not complying

with the request for information or proof that he did comply with the

request. Furthermore, the requested information was germane to the

processing of the complaint. Therefore, by not supplying such, appellant

has engaged in delay and willful disobedience, thereby preventing the

agency from processing and adjudicating on his complaint. Accordingly,

the agency's decision to dismiss appellant's allegations of harassment

and time and attendance for the following dates: May 4, 1998, May 20,

1998, July 2, 1998, July 4, 1998 and August 4, 1998 for failure to

cooperate was proper and is AFFIRMED.<2>

As per the agency's dismissal of appellant's allegation of harassment

on July 9, 1998 and time and attendance on July 20, 1998, the agency's

analysis is incorrect that appellant has failed to state a claim.

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, that fails to

state a claim. An agency shall accept a complaint from any aggrieved

employee or applicant for employment who believes that he or she has been

discriminated against by that agency because of race, color, religion,

sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;

�1614.106(a). The Commission's federal sector case precedent has long

defined an "aggrieved employee" as one who suffers a present harm or loss

with respect to a term, condition, or privilege of employment for which

there is a remedy. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

The only proper questions in determining whether an allegation is

within the purview of the EEO process are: (1) Whether the complainant

is an aggrieved employee and (2) Whether he has alleged employment

discrimination covered by the EEO statutes. An employee is �aggrieved�

if he has suffered direct and personal deprivation at the hands of the

employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133

(March 2, 1990). Here, appellant alleged that he was required to

submit documentation before leave requests would be approved and that

his work ethics were being investigated through his subordinates.

Appellant's allegations are sufficient to render him an aggrieved

employee. Furthermore, since appellant has alleged that the adverse

action was based on reprisal, appellant has raised allegations within

the purview of the EEOC regulations.

Accordingly, the agency's decision to dismiss appellant's allegations of

discrimination on July 20, 1998 and July 9, 1998 for failure to state a

claim was improper and is REVERSED. Appellant's complaint is remanded

to the agency for further processing in accordance with this decision

and applicable regulations.

ORDERED (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:

November 8, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

1The agency was unable to supply a copy of a certified mail return

receipt or any other material capable of establishing the date

appellant received the agency's final decision. Accordingly,

since the agency failed to submit evidence of the date of receipt,

the Commission presumes that appellant's appeal was filed within

thirty (30) days of receipt of the agency's final decision. See,

29 C.F.R. �1614.402.

2Since we are affirming the agency's dismissal of harassment for May

4, 1998, May 20, 1998 and July 6, 1998 as well as for the allegation

of time and attendance for July 2, 1998 and August 4, 1998 on the

grounds of failure to cooperate pursuant to 29 C.F.R. 1614.107(g), we

will not address the agency's alternative ground for dismissal, i.e.,

that appellant failed to raise the aforementioned allegations with an

EEO Counselor pursuant to 29 C.F.R. �1614.107(b)