01991006
02-14-2000
Ione F. Ellison v. Office of Personnel Management
01991006
February 14, 2000
Ione F. Ellison, )
Complainant, )
)
v. ) Appeal No. 01991006
) Agency No. 98-18
Janice R. Lachance, )
Acting Director, )
Office of Personnel Management, )
Agency. )
____________________________________)
DECISION
Based on a review of the record, we find that the agency improperly
dismissed complainant's complaint for failure to cooperate.<1> See 64
Fed. Reg. 37,656 (1999) (hereinafter referred to and to be codified as 29
C.F.R. � 1614.107(a)(7)). We find no arguments by the agency in response
to complainant's November 13, 1998 appeal from the October 6, 1998 final
agency decision (FAD) to persuade the Commission to the contrary.<2>
The FAD defined complainant's<3> complaint as claiming that, for
prohibited reasons, the agency denied coverage for her son and daughter
under the Federal Employees Health Benefits Plan (FEHBP).<4> The FAD
dismissed the complaint for the stated reason that complainant did not
respond to an April 13, 1998 request for further information. The FAD
stated that the agency was unable to determine the date as well as the
"nature of events" giving rise to her claims.
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides, in pertinent
part, that an agency may dismiss a complaint in its entirety, prior to
a request for a hearing,
[w]here 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 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. Instead of dismissing for failure to cooperate,
the complaint may be adjudicated if sufficient information for that
purpose is available.
In the present case, the Commission finds that the agency's April
13, 1998 request for information did not contain the required notice
of dismissal. We further find that the April 13, 1998 request for
information identified complainant's claim as alleging that her
daughter and son, ages 51 and 38 respectively, were not covered under
the FEHBP because of their disabilities. We also find that, in defining
complainant's complaint, the FAD referenced the EEO Counselor's report
that set forth with specificity complainant's claim, date of the alleged
incident, and requested remedy, albeit complainant's formal complaint
lacked similar clarity. Therefore, we find there is sufficient information
for the agency to adjudicate the complaint.
Finally, we note that it is well settled that a complaint should be
dismissed only in cases where "there is a clear record of delay or
contumacious conduct by the complainant." See Weiss v. Department of the
Army, EEOC Request No. 05960441 (June 5, 1998) (citation omitted). The
Commission finds no such circumstances in the present case.
The FAD is hereby REVERSED, and complainant's complaint is hereby REMANDED
for further processing consistent with the Commission's decision and
applicable regulations. The parties are advised that the Commission's
decision is not a decision on the merits of complainant's complaint. The
agency shall comply with the Commission's ORDER set forth below.<5>
ORDER (E1199)
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 an
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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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:
February 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.
2In the absence of evidence as to when complainant received the FAD,
the Commission accepts her appeal as timely.
3It appears that complainant is a retired Federal employee and annuitant
under the Civil Service Retirement System (CSRS).
4Complainant does not appear to challenge the FAD's defining of her
complaint. In this regard, the Commission notes that her post-appeal
correspondence is largely untimely or unintelligible or both.
5The Commission notes that, in her complaint, complainant appears to
indicate she raised her claim before the Merit Systems Protection
Board (MSPB), as well as in a grievance. The Commission expects
that, on remand, during the investigation of complainant's complaint,
the investigator will make the appropriate inquiry under 29 C.F.R. �
1614.301; and 64 Fed. Reg. 37, 659 (1999) (hereinafter referred to and
to be codified as 29 C.F.R. � 1614.302); pertaining, respectively, to
negotiated grievances and MSPB matters. The Commission further expects
that, if appropriate, the agency will then dispose of complainant's
complaint in accordance with relevant portions of 64 Fed. Reg. 37,656
(1999) (hereinafter referred to and to be codified as 29 C.F.R. �
1614.107(a)(4)), pertaining to dismissals of complaints for previously
raising the same issues in the negotiated grievance process or before
MSPB. Finally, the Commission reminds the agency that any subsequent
dismissal of complainant's complaint in the present matter must include
appeal rights to the Commission.