01A02547
07-27-2000
Eloise Fomby-Denson, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Eloise Fomby-Denson v. Department of the Army
01A02547
July 27, 2000
.
Eloise Fomby-Denson,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A02547
Agency No.
DECISION
Complainant filed an appeal with this Commission from an agency's decision
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.,
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.<1> The Commission accepts the appeal
in accordance with 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at
29 C.F.R. �1614.405).
On March 17, 1999 complainant filed a formal complaint claiming she was
subjected to discrimination on the bases of age, color, race, disability,
and reprisal. Thereafter, on August 13, 1999 and August 19, 1999,
complainant submitted additional forms regarding claims of discrimination.
On September 28, 1999, the agency issued a decision dismissing the
complaint for failure to cooperate. Specifically, the agency noted that
on August 26, 1999 a letter was sent to complainant explaining that �no
action can be taken on your case until such time as you have submitted
one complete document indicating that it is the only document to be
considered as your complete complaint.� Moreover, the agency stated
that complainant was cautioned that failure to provide the relevant
information within fifteen calendar days could result in the dismissal
of her complaint. The agency acknowledged complainant's statement
that the August 19, 1999 document should be used as the complaint, but
concluded that the issues �are neither concise, thorough, simplistic,
nor an understandable narrative document....� Therefore, the agency
dismissed the complaint pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(7)).
On appeal, complainant argues that her attempts to have a Counselor
assigned to her case we met with delays. Complainant contends that instead
of assigning a Counselor, the EEO office responded by requesting that
complainant clarify her complaint, which complainant asserts she did.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(7)) requires an agency to dismiss
a complaint or portion of a complaint for failure to cooperate, or
alternatively, to adjudicate the complaint if sufficient information
for that purpose is available. The regulation is inapplicable under
the following circumstance: (1) the agency has provided the complainant
with a written request to provide relevant information or to otherwise
proceed with the complaint; (2) the request included a notice of the
proposed dismissal for failure to respond within fifteen days of receipt
of the request; and (3) the complainant either fails to respond to the
request within fifteen days of receipt or the complainant's response
does not address the agency's request. The Commission has held that
the regulation is applicable, however, only in cases where there is a
clear record of delay or contumacious conduct by complainant. See Card
v. United States Postal Service, EEOC Request No. 05970095 (April 23,
1998); Anderson v. United States Postal Service, EEOC Request No. 05940850
(February 24, 1995).
In the instant case, the agency requested that complainant clarify
her claims. While the agency may have determined that complainant did
not provide an acceptable answer, complainant nevertheless attempt to
respond to the agency's request on numerous occasions. The agency does
not contend that complainant's response was untimely. Further, the
Commission finds that complainant's response is not reflective of delay
or contumacious conduct. Therefore, we find that the agency improperly
dismissed the complaint for failure to cooperate.
In addition, we note, that the definition of complainant's complaint
must be addressed. In its decision the agency presents summaries of the
three complaint statements submitted by complaint, on March 17, 1999,
August 13, 1999, and August 19, 1999. Although the agency concluded that
�no two documents are even remotely similar ...�, we find that several
matters are repeated. However, we find that the complaint lacks clarity.
The Commission is unable to determine the live claims of the instant
complaint from what is background information. In situations where
the Commission is unable to determine what claims complainant wishes
to pursue through a complaint, the Commission will remand the complaint
to the agency so that the complainant can meet with an EEO Counselor in
order to clarify the issues being pursued in the complaint. See Smith
v. United States Postal Service, EEOC Request No. 05921017 (April 15,
1993). Therefore, this matter is being remanded for clarification of
the claims. The Commission advises complainant to cooperate with the
EEO office to clarification the issues being pursued.
Accordingly, the agency's decision to dismiss the complaint is VACATED.
The complaint is REMANDED to the agency for further processing in
accordance with this decision and the Order below.
ORDER
The agency is ORDERED to process complainant's complaint in accordance
with 29 C.F.R. Part 1614 and instructions in this decision. Specifically,
the agency shall:
1. Within fifteen (15) calendar days of the date this decision becomes
final, schedule in writing a meeting between complainant and an EEO
Counselor so an agreement can be reached on the issues in complainant's
complaint of March 17, 1999. After the meeting(s), the Counselor must
issue a new report concerning the meeting(s) and properly defining
the claims. Complainant shall not be required to refile her complaint.
2. Thereafter, the agency shall issue a new final decision or notice
of processing clearly setting forth the claims being addressed.
3. The agency shall complete all of the above actions within sixty (60)
calendar days of the date this decision becomes final.
A copy of the agency's letter to complainant arranging a meeting with
an EEO Counselor, and a copy of the new agency decision or notice of
processing 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:
i. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
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:
______________________________
Carlton M. Hadden, Acting Director
Office of Federal Operations
July 27, 2000
__________________
Date
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.