01a10326
11-28-2000
Marie Kunkel, Complainant, v. Norman Y. Mineta, Secretary, Department of Commerce, Agency.
Marie Kunkel v. Department of Commerce
01A10326
November 28, 2000
.
Marie Kunkel,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A10326
Agency No. 00-63-00927D
DECISION
The instant matter is being processed pursuant to a Memorandum of
Understanding (MOU) entered into by the agency, the Bureau of the Census,
and the United States Equal Employment Opportunity Commission. The MOU
was entered into in order to process complaints arising from the 2000
Decennial Census more effectively and efficiently.
Pursuant to the MOU, individuals file their complaints directly with
the Commission. The Commission, through its Washington, D.C. Field
Office, then conducts an early assessment of complaints and neutral
evaluation of cases. The Washington, D.C. Field Office of the Commission
establishes a record of the complaint by obtaining an affidavit from the
complainant and by contacting an agency official to obtain the necessary
information on the complaint. Based on the record established by the
Washington, D.C. Field Office, the Washington, D.C. Field Office will:
(1) notify the agency that the individual has elected not to file a
formal complaint; (2) issue a decision dismissing the complaint and
notify the complainant of his or her right to appeal the decision to
the Office of Federal Operations; (3) conduct settlement negotiations;
or (4) notify the complainant that the complaint has been accepted and
forward the complaint to the agency for further investigation.
On October 3, 2000, the Commission's Washington, D.C. Field Office
dismissed the instant complaint for failure to cooperate. In her
complaint, complainant alleged discrimination on the bases of sex and
reprisal for prior EEO activity when her work was reassigned to others
and eventually she was terminated. In its dismissal, the Field Office
explained that an investigator scheduled an interview with complainant on
June 5, 2000, but she was not reachable because her phone line was busy.
The Field Office found that it sent complainant a letter warning her
that the complaint would be dismissed if she failed to re-schedule
the interview within fifteen days. According to the Field Office,
complainant never responded to the letter.
On appeal, complainant argues that she was waiting by the phone at 10:00
for her appointed interview on June 5, 2000. She claims that she left
at 10:40 without receiving the scheduled call. Complainant admits to
receiving the investigator's letter on June 19, 2000, but claims to
have called the investigator and left messages on June 19 and 20, 2000.
Complainant asserts that she reached the investigator by phone on June
21, 2000, and scheduled a telephonic interview for the following day.
Complainant claims that the interview was conducted as planned on June 22,
2000, and the investigator informed complainant that she would receive
an affidavit by mail. Complainant argues that she never received an
affidavit, and left a message for the investigator on September 6, 2000.
She contends that the investigator never responded to this message.
The record includes a complete, detailed Counselor's Report, and
complainant's formal complaint. The formal complaint includes a five
page narrative explaining the bases and events complainant believed to be
discriminatory. The record also includes a letter from the investigator,
dated June 14, 2000, requesting that complainant contact him by telephone
to set-up an interview date. The letter warns complainant that failure
to respond within fifteen days �from the date of this correspondence
will result in a dismissal. . . .�
To dismiss a complaint for failure to cooperate, complainant first must
be provided with a written request to provide relevant information or
otherwise proceed with the complaint. See 29 C.F.R. � 1614.107(a)(7).
The request must propose to dismiss the complaint if complainant fails
to respond within fifteen days of receiving the request, or fails to
address the agency's request in her response. See id. However, if
sufficient information is available, the complaint may be adjudicated
rather than dismissed. See id.
Complainant asserts without contradiction that she called the investigator
on several occasions to proceed with her complaint, and took part in
the interview. Further, the record contains sufficient evidence to
make an acceptability determination -- complainant's claims are clearly
detailed in the Counselor's Report and her formal complaint. Therefore,
dismissal for failure to cooperate is not appropriate.
CONCLUSION
Accordingly, the dismissal is REVERSED, and the claims are REMANDED for
investigation.
ORDER
As provided in the Memorandum of Understanding, the Washington Field
Office shall conduct settlement negotiations and, if unsuccessful,
forward the files to the agency for investigation. The agency shall
complete its investigation within 180 days upon receipt of the file.
At the conclusion of the investigation, the agency must forward a
copy of the investigation to complainant, and provide her rights to a
final agency decision, or a hearing with an EEOC Administrative Judge.
The agency must provide the Compliance Officer with a copy of its cover
letter sending the investigation and notice of rights to complainant
as indicated herein. If the complaint has been settled or otherwise
closed within the 180 day time frame, then the agency must provide the
Compliance Officer with notice of such.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 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 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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
(R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
November 28, 2000
__________________
Date