01991506_r
02-08-2002
Mary J. Hill, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Mary J. Hill v. Department of the Treasury
01991506 and 01996208
.February 8, 2002
Mary J. Hill,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal Nos. 01991506
01996208
Agency Nos. 97-4131
97-4131R1<1>
DECISION
Complainant filed timely appeals from two final agency decisions issued
on November 6, 1998 (Agency No. 97-4131, docketed as Appeal No. 01991506,
herein referred to as �FAD 1") and May 27, 1999 (Agency No. 97-4131R1,
docketed as Appeal No. 01996208, herein referred to as �FAD 2").
Both decisions concern complainant's complaint of unlawful employment
discrimination brought pursuant to Title VII of the Civil Rights Act of
1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The Commission
hereby consolidates and accepts these appeals. See 29 C.F.R. � 1614.405,
� 1614.107(b), and � 1614.606.
In her complaint, complainant claimed discrimination due to a hostile
work environment on the bases of race, sex, and in reprisal for prior
protected activity. In support of her complaint, complainant raised
the following fifteen (15) claims:
1. On November 8, 1996, the agency issued complainant a sick leave
restriction letter;
2. On November 8, 1996, the agency issued complainant a letter advising
her that it was recording her absences on August 22, 23, and 28, 1996,
as absent without approved leave (AWOL);
3. The agency voided complainant's job applications and failed to select
complainant for numerous positions;
4. On October 11, 1996, the agency issued complainant an official Letter
of Reprimand;
5. The agency failed to provide complainant with information from her
salary, retirement, leave, and benefits records;
6. The agency incorrectly calculated and recorded complainant's salary,
retirement, leave, and benefits;
7. The agency recorded complainant as AWOL on July 11, 1996;
8. The agency placed derogatory information regarding complainant's
income tax deficiency in her Official Personnel File;
9. The agency failed to remove documentation from complainant's Employee
Performance File regarding her removal from the agency in 1991;
10. The agency denied complainant duties and assignments;
11. The agency threatened complainant with loss of pay from AWOL status
for November 8, 1996, December 5 and 26, 1996, and January 2, 1997;
12. The agency laid off an employee because the employee assisted
another employee with a grievance;
13. The agency accepted evaluations from supervisors who were not
qualified to complete them;
14. The agency removed job application machines from the building where
complainant worked; and
15. The agency failed to comply with an arbitration award that granted
complainant relief for a grievance filed in 1991.
In a final agency decision dated July 29, 1997, the agency accepted
for investigation claims 1, 2, 5, 11, and part of claim 3 (identifying
specific non-selections), but dismissed the remainder of the claims on
various grounds. Complainant filed an appeal from this determination.
On appeal, the Commission determined that the agency properly dismissed
specified non-selections in claim 3, as well as claims 4, 7, 8, 12,
14, and 15; however, the Commission reversed the dismissal of claims 6,
9, 10, and 13, and remanded these claims to the agency for processing.
Hill v. Department of Treasury, EEOC Appeal No. 01980090 (February 18,
1999).
While Appeal No. 01980090 was pending before the Commission, the agency
completed its investigation of the accepted claims, and issued FAD 1,
finding no discrimination. The agency then issued FAD 2, pursuant to the
Commission's remand order, but again dismissed claims 6, 9, 10 and 13,
for failure to cooperate.
FAD 1 (EEOC Appeal No. 01991506 )
The record reveals that during the relevant time, complainant was employed
as a clerk at the agency's Kansas City, Missouri Internal Revenue Service
Processing Division. Believing she was a victim of discrimination,
complainant sought EEO counseling and subsequently filed the captioned
complaint. At the conclusion of the investigation, the agency issued
FAD 1, finding no discrimination regarding claims 1, 2, 5, 11 and the
accepted portion of claim 3. In reaching this conclusion, the agency
determined that complainant failed to demonstrate a prima facie case
of discrimination on the bases of race, sex, or in reprisal for prior
protected activity regarding the accepted claims in the complaint.
Further, the agency determined that even if complainant had established
a prima facie case on any of the alleged bases, the agency articulated
a legitimate nondiscriminatory reason for its actions, and complainant
presented no evidence to suggest that any of these reasons were a pretext
for discriminatory animus.
The Commission notes that the record contains no statement or evidence
from complainant. The report of investigation contains a memorandum
dated April 7, 1997, addressed to complainant, in which the investigator
annotates her attempts to contact complainant, and notifies complainant
of the need to obtain information regarding the complaint; however, the
record also contains a request from complainant, dated that same date,
asking that Complaint No. 97-4131 be administratively closed due to
complainant's ill health, to be reactivated upon complainant's written
request to do so. In correspondence to the Commission, with a copy
received by the agency on October 6, 1997, complainant avers that she
submitted the request for administrative closure of the instant complaint
upon the advice of two EEO officials, and that she was misled into
believing that it had been closed. Complainant contends that she received
no notice that the investigation of her complaint was continuing at any
point after April 7, 1997. Complainant further contends that unknown to
her, the investigator proceeded with and completed the investigation.
The investigative report reflects that the investigation commenced on
April 8, 1997 and concluded on June 4, 1997.
After carefully reviewing the evidence of record, we find that the agency
apparently ignored complainant's request to suspend the investigation
due to her ill health. Specifically, we find no record that the agency
responded to this request, nor do we find that the investigator or agency
notified complainant that the investigation was continuing after the
agency's receipt of this request. In this regard, we find that a March 8,
1999 intra-agency memorandum makes reference to complainant's April 7,
1997 request, thereby confirming the agency's knowledge and receipt,
and supporting complainant's contentions. We find that due to these
circumstances, the record was not fully developed and we VACATE the
agency's determination finding no discrimination regarding claims 1, 2,
5, 11 and the accepted portion of claim 3 in FAD 1, and we REMAND the case
to the agency for further processing in accordance with the ORDER below.
FAD 2 (EEOC Appeal No. 01996208)
In undertaking the investigation ordered by the Commission in EEOC Appeal
No. 01980090, the agency mailed complainant a letter on April 8, 1999,
requesting that she provide information to
clarify the remanded claims, noting that this information was necessary
to continue processing. The agency mailed the letter to complainant's
address of record, and provided notice that failure to provide the
requested information within 15 days of receipt could result in
dismissal of the claims. When complainant failed to respond, the
agency issued FAD 2 on May 27, 1999 (identifying the claims as agency
Complaint No. 97-4131R1), dismissing claims 6, 9, 10,and 13 for failure
to cooperate. Complainant now appeals this determination.
In responding to this appeal, the agency notes correspondence it received
from complainant on June 4, 1999, after issuance of FAD 2, in which
she avers that the agency mailed its request to the wrong address, and
that her receipt was delayed until late May 1999. The agency contends
that complainant failed to provide a change of address to the agency,
and that complainant may be deemed to be in constructive receipt of its
request on the date it arrived at her address of record.
The regulation set forth at 29 C.F.R. � 1614.107(a)(7) provides for the
dismissal 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.
The Commission has held that as a general rule, an agency should not
dismiss a complaint when it has sufficient information on which to base
an adjudication. See Ross v. United States Postal Service, EEOC Request
No. 05900693 (August 17, 1990); Brinson v. United States Postal Service,
EEOC Request No. 05900193 (April 12, 1990). It is only in cases where
the complainant engaged in delay or contumacious conduct and the record
is insufficient to permit adjudication that the Commission has allowed a
complaint to be dismissed for failure to cooperate. See Card v. United
States Postal Service, EEOC Request No. 05970095 (April 23, 1998);
Kroeten v. United States Postal Service, EEOC Request No. 05940451
(December 22, 1994).
Here, review of the record confirms that the agency mailed the April 8,
1999 letter to complainant at both her street address as well as her
post office box address, which is the address that complainant provided
in her complaint. However, in her June 4, 1999 letter to the agency,
complainant contends that she submitted her change of address to the
Office of Federal Operations when she previously appealed. Moreover,
complainant contends, in effect, that her June 4, 1999 response should
be deemed timely because she did not receive the April 8, 1999 letter
until late in May 1999. Complainant further contends that the agency
failed to include a referenced attachment, noting that it was �apparently
the basis of why you are corresponding with me at this time.�
After careful consideration, we find that complainant's actions in this
case do not warrant a finding that her conduct was so contumacious as to
merit a dismissal pursuant to 29 C.F.R. � 1614.107(a)(7). Notwithstanding
this determination, we advise complainant of the necessity to cooperate
in the continued processing of her claim and to inform the agency and
the Commission of any change in address, or risk the possibility that
these claims may be dismissed in the future. Accordingly, the FAD 2
dismissal is REVERSED and claims 6, 9, 10 and 13 are REMANDED to the
agency for further processing as ORDERED below.
ORDER
The agency is ORDERED to take the following action:
1. The agency is ordered to consolidate the captioned complaints
(Agency Nos. 97-4131 and 97-4131R1) for processing.
2. Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall commence a supplemental investigation to obtain
statements and evidence from complainant to address her contentions in
claims 1, 2, 5, 11 and the accepted portion of claim 3, and to provide
her with the opportunity to respond to the evidence of record.
3. Within fifteen (15) calendar days of the date this decision becomes
final, and concomitant with the actions in #2, the agency is ordered to
resume processing claims 6, 9, 10 and 13 from the point where processing
ceased. The agency shall acknowledge to complainant that it has reinstated
and resumed processing of these claims.
4. Within sixty (60) calendar days of the date this decision becomes
final, the agency shall complete all of the above actions, to include an
investigation of claims 6, 9, 10 and 13, as appropriate, and to provide
complainant with a complete copy of the investigative file. The agency
shall also provide notice to complainant regarding her right to request
a hearing or a final agency decision without a hearing pursuant to 29
C.F.R. � 1614.109(f).
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 (K0501)
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)
(1994 & Supp. IV 1999). 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 (M0701)
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
February 8, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The agency assigned a new complaint number (99-4159) to identify that
those claims in the complaint which the agency dismissed, but which were
later remanded for processing by the Commission on appeal. The agency
then replaced this number with 97-4131R1. The procedural history of
this case will be more fully discussed herein.