Iris S. Solomon, Appellant,v.Richard J. Danzig, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionSep 17, 1999
01990253_r (E.E.O.C. Sep. 17, 1999)

01990253_r

09-17-1999

Iris S. Solomon, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.


Iris S. Solomon, )

Appellant, )

)

v. ) Appeal No. 01990253

) Agency No. 98-62980-003

Richard J. Danzig, )

Secretary, )

Department of the Navy, )

Agency. )

______________________________)

DECISION

On October 15, 1998, appellant, a former term employee Budget Analyst,

filed a timely appeal with this Commission from a final agency decision

(FAD) received by her on September 25, 1998, pertaining to her complaint

of unlawful employment discrimination in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. In her

complaint, appellant alleged that she was subjected to discrimination on

the bases of race (African-American) and sex (female) when on February

17, 1998, appellant's supervisor spoke to appellant in a loud and abusive

tone of voice.

The agency dismissed appellant's complaint pursuant to EEOC Regulation

29 C.F.R. �1614.107(g), for failure to cooperate. Specifically,

the agency found that it sent appellant two requests for information,

and appellant's only response consisted of a statement, already in the

record, which did not provide the required information. Further, the

agency found that appellant failed to respond to the second request.

On appeal, appellant argues that she was terminated on March 3, 1998,

and that her supervisor spoke to her in an abusive manner.

In response, the agency notes that appellant received the first agency

request for information concerning how she was aggrieved on June 12, 1998,

and responded June 16, 1998, with insufficient information. The agency

asserts that appellant never responded to the second request although

she received it on August 7, 1998. The agency argues that appellant's

failure to respond was contumacious conduct that delayed the EEO process,

and that there was insufficient information in the record from which the

agency could make a determination on the merits of appellant's allegation.

The Counselor's Report, dated June 2, 1998, states that appellant's

supervisor discussed a work assignment with appellant in an abusive tone.

According to the report, after appellant complained of the incident,

she was terminated. Appellant's formal complaint, dated May 18, 1998,

does not raise appellant's termination in the allegation section of the

complaint form, but seeks corrective action in the form of a �permanent

position as a Budget Analyst.�

The record contains the agency's requests for information, dated June 8,

1998, and August 4, 1998, and received by appellant on June 12, 1998 and

August 7, 1998, respectively. Both requests seek information concerning

how appellant was aggrieved by her supervisor's conduct on February 17,

1998, and inform appellant that her failure to respond within fifteen (15)

days may result in dismissal of her complaint. The record also includes

a copy of appellant's response to the first request for information,

dated June 16, 1998, in which appellant describes her February 1998

altercation with her supervisor, and explains that she was terminated

on March 3, 1998.

The Commission finds that the agency improperly defined appellant's

complaint. Appellant repeatedly raised the issue of her removal, in her

request for counseling, in her formal complaint, and in response to the

agency's request for information. Accordingly, appellant's allegations

are properly defined as: (1) on February 17, 1998, appellant's supervisor

spoke to appellant in a loud and abusive tone of voice; and (2) on March

3, 1998, appellant was terminated.

EEOC Regulation 29 C.F.R. �1614.107(g) provides that an agency shall

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, 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.

The Commission has stated that "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 canceled for failure to prosecute/cooperate."

Kroeten v. United States Postal Service, EEOC Request No. 05940451

(Dec. 22, 1994) (citation omitted).

The Commission finds that appellant repeatedly has stated that on

February 17, 1998, appellant's supervisor spoke to her in an abusive

manner, and that appellant subsequently was terminated. Clearly,

the agency has sufficient information of how appellant was aggrieved

to permit adjudication of the complaint. Further, appellant complied

with the agency's first request by providing the relevant information

within fifteen days. Therefore, the agency's dismissal of appellant's

complaint for failure to cooperate is REVERSED, and appellant's complaint

is REMANDED for further processing.

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:

Sept. 17, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations