01A14276_r
10-16-2001
Henry Bowers, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Henry Bowers v. Department of Justice
01A14276
October 16, 2001
.
Henry Bowers,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A14276
Agency No. P-99-0283
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(7).
On June 28, 1999, complainant contacted an EEO Counselor and alleged
that he was discriminated against by the Chief Correctional Officer. On
August 16, 1999, complainant filed an EEO complaint, alleging that he
was discriminated against based on his race and in reprisal for prior
EEO activity when his shift as a lieutenant was changed 35 times to
accommodate white lieutenants.
Following review of the EEO complaint, the agency initiated
correspondence with complainant after determining that his complaint
contained claims that purportedly occurred more than 45 days prior to
his initial EEO Counselor contact. By letter dated July 13, 2000,
the agency requested that complainant provide an explanation for the
tardiness in contacting the Counselor. The agency also requested that
complainant provide a signed statement identifying the actions that form
the basis of his complaint, with the notice that failure to respond
within 15 days of receipt of the request would result in the dismissal
of his complaint. On June 1, 2001, the agency dismissed the complaint
for failure to cooperate, stating that complainant did not respond to
the agency's requests.
On appeal, complainant asserts that he is the victim of the ongoing
discrimination. Complainant also submits copies of letters dated June
9, 2000 and July 18, 2000, in response to agency correspondence requesting
information regarding the matters raised in the formal complaint.
Both letters submitted on appeal address the agency's purported actions,
which are categorized as a �pattern of continued harassment� and indicate
that the �threshold of complaint was reached May 10, 1999. . . �
The regulation set forth at 29 C.F.R. � 1614.107(a)(7) provides
that an agency may dismiss a complaint for failure to cooperate, or
alternatively, adjudicate the complaint if sufficient information for that
purpose is available. The regulation is applicable under the following
circumstances: (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 this case, the agency requested specific information regarding
complainant's complaint, relating to the claims addressed therein and the
timeliness of complainant's EEO Counselor contact. The agency determined
that complainant's responses were not received; however, on appeal,
complainant provides copies of responses that were purportedly submitted
to the agency in a timely fashion. We do not find that complainant's
actions are reflective of contumacious conduct. In addition, it appears
that there is sufficient information in the record to adjudicate the
complaint. For example, the record contains a copy of a statement
prepared by complainant and submitted to an EEO Counselor that provides
a description of the alleged events. Consequently, we find the agency's
dismissal of the complaint for failure to cooperate was improper.
Accordingly, the agency's final decision dismissing complainant's
complaint is REVERSED and the complaint is hereby REMANDED for further
processing in accordance with the Order below.
ORDER (E0900)
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 (K0501)
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 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 (M0701)
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 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 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 (R0900)
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, Director
Office of Federal Operations
October 16, 2001
__________________
Date