Edward F. Shimkus, Complainant,v.Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.

Equal Employment Opportunity CommissionApr 28, 2000
01a00700 (E.E.O.C. Apr. 28, 2000)

01a00700

04-28-2000

Edward F. Shimkus, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.


Edward F. Shimkus, )

Complainant, )

) Appeal No. 01A00700

v. ) Agency No. IHS 100-98

)

Donna E. Shalala, )

Secretary, )

Department of Health and Human )

Services, )

Agency. )

)

DECISION

INTRODUCTION

Complainant filed an appeal with this Commission from a final agency

decision (FAD) concerning 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.<1> The appeal is accepted

pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29

C.F.R. � 1614.405).

ISSUE PRESENTED

The issue on appeal is whether the agency properly canceled complainant's

complaint for failure to prosecute and determined that complainant failed

to demonstrate that the agency discriminated against him.

BACKGROUND

The record reveals that during the relevant time, complainant was employed

as a Dental Officer, at the agency's Acomita-Canoncito-Laguna Hospital

in the Albuquerque, New Mexico Area. Complainant alleged that he was

discriminated against on the basis of race (White) and reprisal for prior

protected activity when: (1) on April 30, 1998, complainant was charged

with twenty-four hours of absence without leave (AWOL) for April 27

through April 29, 1998; (2) between September 13, 1997 through March 28,

1998, complainant was not reimbursed for thirteen (13) travel vouchers;

and (3) on June 5, 1998, complainant was terminated from his position.<2>

Believing he was a victim of discrimination, complainant sought EEO

Counseling on June 5, 1998. The EEO Counselor attempted to contact

complainant to obtain an address and phone number. Complainant failed to

respond to the Counselor's request and the complaint was closed on August

5, 1998. Subsequently, complainant timely filed a complaint on August

27, 1998. The record indicates that the EEO Manager submitted a letter

on October 15, 1998, requesting specific information from complainant.

Complainant responded on November 13, 1998, by letter which failed to

adequately address the information requested by the EEO Manager.

On November 17, 1999, the agency issued complainant a letter which

accepted three of the four claims in complainant's complaint for

investigation and dismissed one claim. In March 1999, the EEO

Investigator found that the return receipt for certified mail for

the November 17, 1999 decision had not been received. Therefore,

the agency concluded that complainant did not receive the letter.

The agency issued a second acceptance/denial letter on March 16, 1999,

and complainant responded to the letter on April 13, 1999, alleging that

the EEO Office was conspiring to deny him reimbursement for travel.

On May 5, 1999, the Investigator submitted a request for an affidavit

to complainant by mail and by e-mail. The Investigator did not get

a response or the return receipt for certified mail. On May 27,

1999, the EEO Office submitted a letter which proposed to dismiss

the complaint unless complainant responded within fifteen (15) days.

On June 10, 1999, complainant responded informing the EEO Office that

he did not receive the May 5, 1999 letter nor the e-mail. On June 15,

1999, the agency resubmitted its request for an affidavit. On July

6, 1999, complainant sent his affidavit to the EEO Manager who found

that the information provided was insufficient. On August 17, 1999,

the EEO Investigator submitted another set of questions for a second

affidavit and the letter was received by complainant on August 18, 1999.

On September 13, 1999, complainant responded by requesting a hearing

before the EEOC and suspended any further direct contact with the EEO

Office, unless advised to the contrary by the agency.

On September 24, 1999, the agency issued its FAD finding that

complainant's inaction and insufficient and untimely responses were

tantamount to failure to prosecute. The agency also rendered a finding

on the merits of complainant's compliant, contending that there was

sufficient evidence available to adjudicate the complaint. The agency

found that complainant failed to demonstrate by preponderant evidence

that the agency's actions were discriminatory.

From this decision, complainant appeals. On appeal, complainant contends

that he is gathering data and documents related to his case and that he

has yet to have a hearing before the EEOC.

ANALYSIS AND FINDINGS

EEOC Regulations provide that an agency shall cancel a complaint

when complainant has failed to prosecute the complaint, but instead

of canceling the complaint, the agency may adjudicate the complaint if

sufficient information is available. See 64 Fed. Reg. 37,644, 37,656 (to

be codified and hereinafter referred to as 29 C.F.R. � 1614.107(a)(7)).

The agency elected to decide the complaint on the merits. Accordingly,

before the Commission can determine that the merits of the complaint,

we must determine if the agency was correct in finding that complainant

had failed to prosecute his complaint.

Generally, the decision to cancel a complaint should be made by the agency

�only in cases where there is a clear record of delay or contumacious

conduct by the complainant.� See Anderson v. United States Postal Serv.,

EEOC Request No. 05940850 (February 24, 1995). In the case at hand, the

agency based its finding on complainant's failure to adequately and timely

respond to their requests for information. While complainant failed to

provide the depth of information requested by the agency, complainant's

responses were made at a time when he questioned the sufficiency of the

investigation. Further, as to the agency's claim that complainant's

responses were untimely, complainant explained that he did not receive

some of the correspondence, and when he did receive it, he responded

in a timely fashion. Upon review, we find that complainant's conduct

was not so egregious as to be tantamount to a failure to prosecute.

Accordingly, the Commission finds that the agency's FAD finding no

discrimination was improper and is VACATED.

Further, we note that complainant expressed dissatisfaction with the

investigation of his complaint and requested a hearing in his September

13, 1999 letter. The record indicates that, at that time, complainant

had not received a copy of the investigative file and made his request

after 180 days had elapsed from the filing of the complaint. Upon review

of the record, we find that complainant has timely requested a hearing

before an EEOC Administrative Judge (AJ). 64 Fed. Reg. 37,644, 37,657

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.108(g)).

Accordingly, we find that the complaint is REMANDED to the agency and

that the agency shall request a hearing be held on complainant's complaint

before an EEOC AJ.

CONCLUSION

Accordingly, the decision of the agency was improper and is VACATED and

REMANDED for further processing in accordance with this decision and

the proper regulations.

ORDER (E0400)

The agency is ORDERED to request that an administrative hearing be held

on complainant's complaint before an Administrative Judge pursuant to 64

Fed. Reg. 37,644, 37,657 (to be codified and hereinafter referred to as

29 C.F.R. � 1614.109), and, thereafter, process the matter in accordance

with applicable regulations.

The agency shall notify the Commission and complainant no later than

thirty (30) calendar days from the date this decision becomes final that

it requested a hearing on complainant's complaint. A copy of the letter

requesting the appointment of an AJ for a hearing must be sent to the

Compliance Officer as referenced 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 (M0300)

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); 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

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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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:

April 28, 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:

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.

2Complainant also alleged that in June 1997, he was denied a

Within-Grade-Increase. However, the agency dismissed this claim on

November 17, 1999, and reissued the decision on March 16, 1999, providing

complainant the appropriate rights. Complainant failed to exercise his

right to an appeal.