01990701
09-22-1999
Jeffrey R. Jones, Appellant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Jeffrey R. Jones v. Department of Health and Human Services
01990701
September 22, 1999
Jeffrey R. Jones, )
Appellant, )
)
v. ) Appeal No. 01990701
) Agency No. IHS-076-98
Donna E. Shalala, )
Secretary, )
Department of Health and Human )
Services, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning his 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. The final agency decision was issued on October
14, 1998. The appeal was postmarked October 30, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
appellant's complaint on the grounds of failure to cooperate.
BACKGROUND
Appellant initiated contact with an EEO Counselor on April 9, 1998.
On June 4, 1998, appellant filed a formal EEO complaint wherein he
alleged that he had been discriminated against on the bases of his race
(Eskimo), sex (male), and in reprisal when on January 17, 1998, he was
forced to resign from his position as Medical Supply Technician.
In a letter dated June 23, 1998, the agency requested that appellant
provide additional information regarding why he did not contact an EEO
Counselor within the 45-day limitation period. The agency further stated
that appellant did not appear to have previously engaged in EEO activity.
The agency requested that appellant provide information that will show
the month, day, and year he contacted an EEO Officer or Counselor.
Appellant was informed that failure to respond to this request within
fifteen calendar days of his receipt of the letter may result in dismissal
of his complaint.
The record contains an undated letter sent from appellant to the EEO
Counselor. In this letter, appellant apologized for not responding to the
request for information. Appellant stated that his impression was that
the agency would not pursue the investigation so he decided not to pursue
the matter with the agency. Appellant stated that he raised his complaint
in a timely manner, but that he raised it with the wrong area office.
In its final decision, the agency dismissed appellant's complaint on the
grounds that appellant failed to cooperate. The agency determined that
appellant received its request for further information on July 2, 1998,
but appellant failed to respond to the request. The agency noted that
it informed appellant that failure to respond to the request may lead
to dismissal of the complaint.
Thereafter, appellant submitted the instant appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(g) provides that the 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 notes that an agency's decision to invoke the provisions
of 29 C.F.R. �1614.107(g) should be made by the agency only when there
is a clear record of delay or contumacious conduct by the complainant.
Connolly v. Papachristid Shipping Ltd., et al., 504 F.2d 917 (5th
Cir. 1974). This is because implicit in the scheme of attempted control
of the evil of discrimination by administrative and judicial machinery
is a degree of cooperation by the complaining party. Jordan v. United
States, 522 F.2d 1128 (8th Cir. 1975). Accordingly, the obligation
to informally and expeditiously resolve complaints is imposed on both
parties.
Further, the Commission has held that, as a general rule, an agency should
not cancel a complaint when it has sufficient information on which to
base an adjudication. See George Ross v. United States Postal Service,
EEOC Request No. 0590693 (August 17, 1990); Pamela A. Brinson v. United
States Postal Service, EEOC Request No. 05900193 (April 12, 1990). 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). See Arturoc Raz v. United States Postal Service,
EEOC Request No. 05890177 (June 14, 1989).
Based on the record herein, we find that the agency improperly dismissed
appellant's complaint for failure to cooperate. The agency decided
to dismiss the complaint because appellant failed to respond to its
request for information as to the reason he did not contact an EEO
Counselor within the 45-day limitation period, and as to when he
previously engaged in EEO activity. The record contains an undated
letter sent from appellant to the EEO Counselor, wherein appellant
apologized for not responding to the request for information. In this
letter, appellant stated that he believes he raised his complaint in
a timely manner, but that he raised it with the wrong area office.
Appellant did not provide clear and specific information in response to
the agency's request. However, although appellant apparently failed
to fully respond to the agency's request for further information, we
find that the record contains sufficient information for an adjudication.
We note with regard to the matter of appellant's EEO contact that the date
of initial contact and the alleged date of the discrimination are stated
in the EEO Counselor's report, and that the request for information only
sought appellant's explanation for his untimely EEO contact. The agency
indicated in its request for information that it considered appellant to
have initiated contact with an EEO Counselor in an untimely manner.<1>
Rather than dismissing the complaint for failure to cooperate, we find
that the record contains sufficient information for an adjudication.
Accordingly, the agency's final decision is REVERSED and the complaint
is REMANDED to the agency for further processing consistent with the
Order below and applicable regulations.
ORDER
The agency is ORDERED to issue either a notice of processing or a
final decision with regard to the remanded complaint within thirty (30)
calendar days of the date this decision becomes final.
A copy of the notice of processing or the final agency decision 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:
September 22, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 In the request for information, the agency stated that appellant
did not initiate contact with an EEO Counselor until August 22, 1997.
However, the EEO Counselor's report indicates that appellant initiated
contact with an EEO Counselor on April 9, 1998. This latter date is
more plausible in light of the fact that the alleged discrimination did
not occur until mid-January 1998.