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)