0120112481
12-16-2011
Haywood B. Thorbs, Complainant, v. Leon E. Panetta, Secretary, Department of Defense (Defense Commissary Agency), Agency.
Haywood B. Thorbs,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense
(Defense Commissary Agency),
Agency.
Appeal No. 0120112481
Agency No. DECA000412011
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated March 10, 2011, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
worked as a Lead Commissary Support Clerk, GS-303-05, at the Hill
Air Force Base Commissary, in Davis County, Utah. On December 24,
2010, Complainant filed a formal complaint alleging that the Agency
subjected him to discrimination on the bases of race and color when:
(1) he received a letter of concern regarding sick leave; and (2) he
was subjected to harassment.
The Agency dismissed the claims pursuant to 29 C.F.R. § 1614.107(a)(7)
for failure to cooperate. The Agency’s final decision stated that
Complainant failed to clarify his allegations. The Agency’s final
decision also noted that Complainant was sent a notice asking him
to provide information in support of his claims, and was warned that
failure to respond within 15 days of its receipt may result in dismissal
of the complaint. The Agency asserts that Complainant did not provide
the requested information.
Generally, 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). In the instant case, we find, based on
our review of the record that the Agency’s final decision improperly
dismissed the complaint for failure to cooperate.
We note that sufficient information exists in the record which clearly
identifies Complainant’s claims. The EEO counseling report identifies
Complainant’s race as Black and the date of the alleged discriminatory
event as October 26, 2010. The EEO counseling report and formal complaint
includes pages of handwritten statements from Complainant describing his
claims, including the names of alleged responsible management officials
and relevant dates. In addition, the record provides numerous documents
relevant to Complainant’s claims, including the alleged Letter of
Concern which is dated October 26, 2010.
Moreover, the record contains a letter from Complainant dated February 14,
2011, in response to the Agency’s request for clarifying information
which restates allegations previously made that on October 26, 2010, the
store administrator (S1) and store director (S2) discriminated against him
by issuing a Letter of Concern for sick leave abuse. Complainant further
explained that he submitted all the correct documentation, leave forms,
and doctors’ excuses which had been approved by S1. Complainant also
stated that his White co-worker (C1) was also issued a Letter of Concern
during the relevant time-frame. S1 allegedly called C1 into his office to
discuss the Letter of Concern and thereafter removed and destroyed C1’s
Letter of Concern. Yet, S1 did not discuss Complainant’s Letter of
Concern with Complainant or remove it from his files. Complainant also
summarized his harassment claim that since his arrival at the Hill Air
Force Base Commissary, S1 has treated the White workers more preferably
than the minority workers, which caused a hostile work environment.
We find that the record is sufficient to allow adjudication of the claims
as defined herein. Any additional evidence necessary to adjudicate
the complaint should be gathered during the EEO investigation process.
Accordingly, the Agency’s final decision is REVERSED. This matter
is REMANDED to the Agency for further processing in accordance with the
ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with
29 C.F.R. § 1614.108. 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 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 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 (K0610)
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 (M0610)
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), at 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 (R0610)
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 (Z0610)
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:
December
16, 2011
____________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations
2
01-2011-2481
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013