01a00358
04-14-2000
Herbert Lee Ham, Jr., Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Herbert Lee Ham, Jr., )
Complainant, )
)
v. ) Appeal No. 01A00358
) Agency No. 3-99-3060
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
____________________________________)
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999) (to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(7)).<1>
On March 25, 1999, complainant filed a formal EEO complaint alleging
that he was discriminated against based on his race (Black) and physical
disability (HIV-positive), when:
(1) on February 24, 1999, his superior gave him a memorandum requesting a
diagnosis and prognosis of his condition based on his most recent medical
evaluation, a list of all current medications prescribed by his physician,
and an explanation of the impact of the medical condition and prescribed
medications on complainant and his job activities;
(2) on February 25, 1999, his supervisor gave him a memorandum removing
him from his position as an aviator weather processor and placed him on
administrative duties until receipt of the requested medical information
and evaluation of his ability to continue to perform his duties; and
(3) he was harassed based on his HIV-positive status by co-workers,
creating a hostile work environment of which his supervisor was on notice
but failed to remedy.
On July 13, 1999, the agency served interrogatories on complainant,
received on July 15, 1999, and simultaneously served a copy on his
attorney, which was received July 14, 1999. On August 13, 1999, at the
request of complainant's attorney, an extension was granted. On September
9, 1999, the agency denied complainant's counsel's request for another
extension. On the same date, the agency re-served the interrogatories
on complainant, together with a notice that failure to respond within
15 calendar days would result in dismissal of the complaint. Federal
express records reveal that three delivery attempts at complainant's
home address were unsuccessful, and the package was returned to the
agency on September 16, 1999, as undelivered. A copy of the re-served
interrogatories, together with the notice of possible dismissal, was
delivered to complainant's counsel's address on September 10, 1999.
By final agency decision (FAD) dated September 30, 1999, the agency
dismissed the complaint pursuant to 29 C.F.R. � 107(a)(7) for failure
to prosecute.
On appeal, complainant's counsel, who has since withdrawn, asserts that
the attorney who was initially representing complainant left his position,
and she did not replace him at his law firm and commence work on his cases
until September 13, 1999. She met with complainant on September 17, 1999,
but then experienced some computer problems in preparing his interrogatory
responses. She asserts that once complainant's answers were typed and
ready for his review, she learned that he was hospitalized and she was
unable to discuss the typed interrogatory answers with him until his
release from the hospital. Complainant's counsel further contends that
by telephone conversation with the Acting Regional Director (ADR) of the
agency EEO office on September 30, 1999, the same day the FAD was issued,
the ADR agreed to rescind the dismissal if complainant's interrogatory
answers were mailed to the agency that day, as indicated by a postmark
of September 30, 1999. The agency has not disputed this assertion on
appeal, and the record contains complainant's interrogatory answers and
a copy of an envelope addressed to the agency from complainant's counsel
postmarked September 30, 1999.
EEOC Regulation 29 C.F.R. �1614.107(a)(7) requires an agency to dismiss
a complaint where the agency has provided the complainant with a written
request to provide relevant information or otherwise proceed with the
complaint, and the complainant has failed to respond to the request within
fifteen (15) days of its receipt or the complainant's response does
not address the agency's request, provided that the request included a
notice of the proposed dismissal. However, the Commission has also held
that such dismissal is applicable only in cases where there is a clear
record of delay or contumacious conduct by the complainant. See Magdalene
Anderson v. United States Postal Service, EEOC Request No. 05940850
(February 24, 1995).
After a careful review of the record, we find that the agency did not
establish that complainant engaged in delay or contumacious conduct
sufficient to warrant dismissal of the complaint. The record contains
the formal complaint and EEO counseling report, both of which identify
complainant's supervisor and a co-worker with relevant knowledge.
In addition, the record contains complainant's counsel's letter to
the agency dated May 24, 1999, identifying names of five additional
employees whom complainant alleged harassed him. The agency therefore
had sufficient information to commence its investigation, pending receipt
of complainant's interrogatory answers. Moreover, the agency has not
disputed on appeal complainant's counsel's contentions regarding the
reasons for the delay in responding, or the agreement purportedly made
with the agency's counsel to rescind the dismissal if the responses to
the agency's interrogatories were served on September 30, 1999.
Accordingly, the agency's final decision dismissing the instant complaint
for failure to prosecute is REVERSED. The complaint is hereby REMANDED
for further processing in accordance with the Order below.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
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:
April 14, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant 1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.