01a02587
07-26-2000
Lynette Burroughs, Complainant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
Lynette Burroughs v. Department of Labor
01A02587
July 26, 2000
Lynette Burroughs, )
Complainant, )
)
v. ) Appeal No. 01A02587
) Agency No. 911130
Alexis M. Herman, )
Secretary, )
Department of Labor, )
Agency. )
____________________________________)
DECISION
On March 11, 2000, complainant filed a timely appeal with this Commission
from a final agency decision (FAD), 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> The
Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
On March 1, 1999, complainant contacted the EEO office, claiming that
she was subjected to discrimination based on race when she was denied
a promotion; incorrectly hired into another position; and incorrectly
rated on two performance evaluations in 1997 and 1998. Informal efforts
to resolve complainant's concerns were unsuccessful. On June 2, 1999,
complainant filed a formal complaint.
The agency issued a FAD, dated December 22, 1999, dismissing the
complaint for failure to cooperate. Specifically, the agency indicated
that complainant did not respond to requests for information regarding
her delay in initiating the complaint process. The FAD states that
the agency wrote to the representative whom complainant had retained,
on September 8, 1999, and on October 25, 1999, requesting information
regarding complainant's delay in contacting an EEO Counselor about
the 1997 and 1998 performance evaluations and additional documentation
to establish a prima facie case regarding the promotion denial; that
the letters required a response from complainant within fifteen days
from the date of their receipt; and that complainant's failure to do so
could result in the dismissal of her complaint for failure to cooperate.
The agency determined that complainant did not provide the requested
information within the required 15-day time period and dismissed the
complainant's complaint for failure to cooperate.
The regulation found at 64 Fed. Reg. 37,644, 37, 656 (1999) (to
be codified and hereinafter cited as 29 C.F.R. � 1614.107 (a)(7))
requires an agency to dismiss a complaint for failure to cooperate,
or alternatively, to adjudicate the complaint if sufficient information
for that purpose is available. The regulation is applicable under the
following circumstances: (1) the agency has provided the complainant
with a written request to provide relevant information or to otherwise
proceed with the complaint; (2) the request included a notice of the
proposed dismissal for failure to respond within 15 days of receipt
of the request; and (3) the complainant either fails to respond to the
request within 15 days of receipt or the complainant's response does not
address the agency's request. The Commission has held that the regulation
is applicable, however, only in cases where there is a clear record of
delay or contumacious conduct by the complainant. See Anderson v. USPS,
EEOC Request No. 05940850 (February 24, 1995).
The Commission determines that the agency's dismissal was improper.
The record contains no material establishing that complainant received
the letters of September 8, 1999, and October 25, 1999. Moreover,
the Commission notes that on appeal, complainant claims that her legal
representative who was purportedly the recipient of the letters of
September 8, 1999, and October 25, 1999, never retrieved certified
mail from the post office; did not respond to calls or letters from
the agency's Office of Civil Rights; and had generally miscommunicated
with complainant. Given the specific circumstances of this case,
the Commission determines that the agency's decision to dismiss the
instant complaint for failure to cooperate was improper and is REVERSED.
Complainant's complaint is REMANDED to the agency for further processing
in accordance with the ORDER below.
Having reversed the agency's decision for the reason stated herein,
the Commission notes that it has not made a determination regarding
whether complainant's initial EEO Counselor contact was timely raised.
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
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:
July 26, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.