Guadalupe G. Bigrigg, Appellant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionOct 20, 1999
01990174 (E.E.O.C. Oct. 20, 1999)

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