01a00439
01-28-2000
Judith Montage, Complainant, v. Janice R. Lachance, Director, Office of Personnel Management, Agency.
Judith Montage, )
Complainant, )
)
v. ) Appeal No. 01A00439
) Agency No. 99-07
Janice R. Lachance, )
Director, )
Office of Personnel Management, )
Agency. )
____________________________________)
DECISION
On 10/19/99, complainant filed a timely appeal with this Commission from
a final agency decision (FAD) received by her on 10/19/99, 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.<1> In her complaint, complainant alleged that she was subjected
to discrimination on the bases of sex (female), race (association with
an African-American individual) and reprisal (prior EEO activity), when
her original rating for the Administrative Law Judge (ALJ) examination
was lowered on appeal from 90.3 to 89.7. The appeal is accepted in
accordance with EEOC Order No. 960.001. For the following reasons,
the Commission REVERSES AND REMANDS the agency's final decision.
The record reveals that complainant filed her formal complaint on December
1, 1998. The agency accepted the complaint for investigation on January
27, 1999. On April 15, 1999, the agency's contract investigator faxed
complainant questions she needed to answer for her affidavit. According
to the record, on April 29, 1999, complainant contacted the agency and
requested that the period of investigation be extended for a period of
90 days. By letter dated May 20, 1999, and received by complainant on
May 29, 1999, the agency notified complainant that the investigator did
not require any additional time to investigate the complaint. Therein,
the agency also informed complainant that:
[I]f a complainant does not provide the information required for the
completion of the investigation the result can be termination of the
investigative process and possible dismissal of the complaint.
On May 29, 1999, complainant requested that the agency reconsider its
decision not to extend the period of investigation. As reason, she
stated she required additional time for which to complete her affidavit.
Complainant did not receive a response from the agency and requested,
on at least three occasions, that the agency respond to her request to
reconsider.
By letter dated July 8, 1999, the agency's investigator sent
complainant another affidavit for her to complete. In that letter,
the agency informed complainant that it was aware complainant requested
an extension of the period of investigation. The investigator also
informed complainant that she failed to respond to its earlier request
for an affidavit, and therefore, they needed to �receive [her] signed
affidavit no later 15 days after [her] receipt of [the] letter.� The
investigator also included sanctions listed in 29 C.F.R. � 1614.108,
regarding what an agency can do if a complainant fails to respond to
an investigator's request for documents. According to the Report of
Investigation and the agency's final decision, complainant did not claim
the July 8, 1999 letter at the post office.
On August 30, 1999, the agency issued a final decision dismissing the
complaint for failure to comply with a written request for relevant
documentation. This appeal followed.
Upon review, we find that the agency improperly dismissed the complaint,
pursuant to 29 C.F.R. � 1614.107(g), for failure to cooperate. The agency
stated in its final decision that complainant was requested to provide
her affidavit concerning the complaint on two occasions, but she failed
to respond. Upon review of the investigator's letters dated April 15,
1999 and July 8, 1999, we find that the agency failed to notify appellant
that she had fifteen (15) calendar days to respond its request for her
affidavit upon receipt of its letter, otherwise her complaint would be
dismissed for failure to cooperate.<2> In its first request, the agency
failed to notify complainant that her complaint would be dismissed if
she failed to respond. The agency's second request was never received by
complainant. The record reveals numerous correspondence were sent between
the parties wherein the agency could have properly informed complainant of
her obligations and consequences for failing to follow the regulations.
Since the agency failed to meet the procedural requirements set forth
in the regulations, the agency's dismissal of the complaint for failure
to cooperate was improper. Accordingly, the agency's final decision is
hereby REVERSED and the complaint is REMANDED to the agency for further
processing in accordance with this decision and applicable regulations.
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:
January 28, 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:
_________________________
__________________________
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.
2As noted above, on May 20, 1999, the agency informed complainant that
if she failed to provide requested information, �the result can be
termination of the investigative process and possible dismissal of the
complaint.� However, the agency failed to indicate the requisite time
frame in which complainant needed to respond.