01990174
10-20-1999
Guadalupe G. Bigrigg, Appellant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.
Guadalupe G. Bigrigg v. Department of the Air Force
01990174
October 20, 1999
Guadalupe G. Bigrigg, )
Appellant, )
)
v. ) Appeal No. 01990174
) Agency No. KHOF97196
F. Whitten Peters, )
Acting Secretary, )
Department of the Air Force, )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated September 2, 1998, which the agency issued pursuant
to EEOC Regulation 29 C.F.R. �1614.107(g). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
The appellant filed a formal complaint, dated February 21, 1997,
wherein she alleged discrimination based on sex and national origin.
Specifically, appellant alleged that on January 13, 1997, she became
aware that the Civilian Personnel Office posted a job announcement on the
Building 43 Bulletin board for training positions GS-2010/1102, 7/9/11-T,
with stringent requirements including an educational requirement of a
4 point grade average.
The agency notified the appellant by letter dated July 6, 1998, that the
agency needed additional information to determine whether the complaint
met the criteria for acceptance set forth in 29 C.F.R. �1614.107. The
agency requested a copy of the job announcement or a detailed description
of the announcement, a copy of the appellant's application, information
regarding when, where, and to whom she submitted the application, or
information concerning any alternative means of application exercised
by the appellant. The letter informed the appellant that if the agency
did not receive a response within fifteen days of appellant's receipt
of the request for information, the agency could dismiss the complaint
pursuant to 29 C.F.R. �1614.107(g).
When the agency did not receive a response, it issued a final agency
decision dismissing appellant's complaint pursuant to 29 C.F.R.
�1614.107(g).
EEOC Regulation 29 C.F.R. �1614.107(g) requires an agency to dismiss
a complaint or a portion of a complaint where the agency has provided
the complainant with a written request to provide relevant information
or otherwise proceed with the complaint, the request included a notice
of the proposed dismissal, and the complainant failed to respond to
the request within 15 days of its receipt or the complainant's response
does not address the agency's request. The regulation further specifies
instead of dismissing for failure to cooperate, the agency may adjudicate
the complaint if sufficient information for that purpose is available.
EEOC Regulation 29 C.F.R. �1614.107(g) applies only to requests for
relevant information. The Commission has long held that, as a general
rule, an agency should not dismiss a complaint where it has sufficient
information on which to base an adjudication. See Ross v. United States
Postal Service, EEOC Request No. 05900693 (August 17, 1990). The
Commission specifically has found that the regulation is not applicable
where there is sufficient information in the record to determine whether
to accept the complaint's allegations without any further input from the
appellant. Breese v. Department of the Army, EEOC Request No. 05940800
(May 25, 1995); and Hart v. Department of Veterans Affairs, EEOC Request
No. 05930591 (December 23, 1993. The Commission also has held that the
regulation is applicable only in cases where there is a clear record of
delay or contumacious conduct by the complainant. Anderson v. United
States Postal Service, EEOC Request No. 05940850 (February 24, 1995).
The Commission finds that the agency erred when it dismissed appellant's
complaint pursuant to 29 C.F.R. �1614.107(g). The agency had sufficient
information to accept the complaint without any further information
from appellant. Specifically, the agency had sufficient notice of the
employment opportunity at issue, that is, the job announcement posted
for the GS-2010/1102 training positions.
Regarding the agency's attempt to secure information relating to whether
appellant applied for the subject position, or whether she was discouraged
from applying due to the allegedly discriminatory requirement(s), that
question involves the merit of the appellant's discrimination claim.
It was not necessary for an agency determination as to whether the
complaint stated a claim given that the Commission repeatedly has reversed
agency dismissals for failure to state a claim where the agency based the
dismissal on its view of the ultimate merit of the complaint allegations.
See, e.g., Cann v. United States Postal Service, EEOC Request No. 05920861
(December 31, 1992) (agency wrongfully dismissed allegation that the
agency failed to upgrade an employee to full-time regular status on the
ground that there were no full time positions available to him under the
terms of the collective bargaining agreement); and Ferns v. Department
of the Army, EEOC Request No. 05920597 (September 10, 1992) (agency's
argument that the complainant was ineligible for position goes to the
merits of the complaint.
Accordingly, the agency's decision to dismiss appellant's complaint
was improper and is REVERSED. Appellant's complaint is REMANDED to
the agency for further processing in accordance with this decision and
applicable regulations.
ORDER (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:
10/20/1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations