0120092549
09-30-2009
Gari Jo Green, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Gari Jo Green,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120092549
Agency No. 08-68510-03228
DECISION
Complainant filed a timely appeal with this Commission from a
final agency decision dated May 5, 2009, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq.
On January 15, 2008, complainant initiated EEO contact alleging that the
agency discriminated against her on the basis of disability (ulcerative
colitis) and reprisal for prior EEO activity when, since October 2007,
her immediate supervisor (S1) subjected her to hostile work environment
harassment and denied her reasonable accommodation. In correspondence
dated July 22, 2008, via her attorney, complainant asked to file a formal
complaint alleging the same, as well as requested a hearing before an
EEOC Administrative Judge (AJ)1. Subsequently, in September and October
2008, complainant amended her complaint to include additional supporting
incidents, through October 2008, for her claim of harassment.
Following an extensive procedural history, the agency dismissed
complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(7).
The agency stated that complainant refused to cooperate with the agency
investigation. It noted that complainant failed to appear for the
investigation or provide a statement to the investigator. The instant
appeal from complainant followed. On appeal, complainant stated that the
agency failed to conduct her counseling and investigation in a timely
manner, improperly failed to recognize her July 22 correspondence as a
formal complaint, and attempted to conduct an investigation after it no
longer had jurisdiction of her complaint (after she filed her hearing
request). The agency opposed complainant's contentions and stated that
she caused the delay. The file contains a record of investigation based
on complainant's initial correspondence but without her rebuttal to the
agency's subsequent statements and evidence.
The regulation set forth at 29 C.F.R. � 1614.107(a)(7), in pertinent
part, authorizes dismissal of a complaint where the complainant fails to
respond to a request for information or otherwise proceed with a complaint
within 15 days of receipt of the agency's request, provided that the
request included a notice of the proposed dismissal. The regulation
further provides that, instead of dismissing for failure to cooperate,
the complaint may be adjudicated if sufficient information for that
purpose is available. The Commission has held that as a general rule, an
agency should not dismiss a complaint when it has sufficient information
on which to base adjudication. See Ross v. U. S. Postal Service, EEOC
Request No. 05900693 (August 17, 1990). It is only in cases where
the complainant has engaged in delay or contumacious conduct and the
record is insufficient to permit adjudication that the Commission has
allowed a complaint to be dismissed for failure to cooperate. See Card
v. U. S. Postal Service, EEOC Request No. 05970095 (April 23, 1998).
Based on the record here and the above criteria, we find that the agency
improperly dismissed complainant's claims of harassment and denial of
accommodation pursuant to 29 C.F.R. � 1614.107(a)(7). Accordingly,
we REVERSE the final agency decision and REMAND the claim of harassment
between October 2007 and October 2008 and denial of accommodation for
further processing consistent with this decision and the Order below.
ORDER
The agency is ordered to process the remanded claims of harassment and
denial of accommodation in accordance with 29 C.F.R. � 1614.108 et
seq. As the agency has already conducted part of the investigation,
the agency should supplement that investigation as appropriate,
including, but not limited to, gathering complainant's statement and
other submissions. Complainant shall cooperate with the agency's efforts
to obtain her statements and evidence. The agency shall acknowledge
to the complainant that it has received the remanded claims within
thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to complainant a copy of the investigative file
and also shall notify complainant of her rights to request a hearing
or an immediate final agency decision 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K1208)
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 77960, Washington,
DC 20013. 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 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) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 77960,
Washington, DC 20013. 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 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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, Director
Office of Federal Operations
September 30, 2009
__________________
Date
1 In a Dismissal dated August 6, 2008, a Supervisory AJ dismissed
complainant's hearing request, stating that there was no indication
that 180 days passed since complainant filed a formal complaint on the
same matter. Then, in an Order dated May 15, 2009, the AJ dismissed
without prejudice a subsequent request for hearing from complainant.
The AJ found that a logical date to conclude complainant filed her formal
complaint is October 28, 2008.
??
??
??
??
2
0120092549
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092549