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.