01985845
03-16-2000
Millard Day, Complainant, v. Bill Richardson, Secretary, Department of Energy, Agency.
Millard Day v. Department of Energy
01985845
March 16, 2000
Millard Day, )
Complainant, )
)
v. ) Appeal No. 01985845
Bill Richardson, ) Agency No. 98(113)OR
Secretary, )
Department of Energy, )
Agency. )
____________________________________)
DECISION
On July 27, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dated July 13, 1998, pertaining to
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 Age Discrimination in Employment Act of 1967 (ADEA), as
amended, 29 U.S.C. � 621 et seq., and Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq. <1> In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of sex (male), age (53), physical disability (tendinitis and arthritis),
mental disability (anxiety and depression), and in reprisal for prior
EEO activity when:
Beginning on August 8, 1997, complainant was denied a transfer to
another organization; and
Complainant was subjected to various incidents of harassment.<2>
The agency dismissed complainant's claim that he was subjected
to discrimination based on a mental disability when he was denied
a transfer on the grounds that complainant failed to state a claim.
The agency dismissed the remainder of complainant's complaint on the
grounds that complainant failed to provide the relevant information
requested by the agency.
The record reveals that the agency sent complainant a letter dated May
5, 1998, in which it asked complainant to indicate whether he filed a
grievance regarding the matters raised in his formal complaint and to
clarify the bases on which he was alleging discrimination, since the
agency claimed that complainant checked all ten bases of discrimination
on his formal complaint.<3> Complainant sent the agency a letter on
May 18, 1998, requesting a hearing before an Administrative Judge (AJ).
The agency sent complainant another letter on June 2, 1998, requesting
clarification of the matters raised in his complaint and stated that if
complainant did not respond within fifteen (15) calendar days of receipt
of the letter, his complaint would be dismissed. On June 5, 1998, the
agency received complainant's response indicating that complainant had
not filed a grievance on the matters raised in his formal complaint.
On June 8, 1998, the agency again requested that complainant clarify
the bases on which he alleged discrimination. The record indicates that
on June 26, 1998, the agency's June 8, 1998 letter was returned to the
agency as not delivered. The agency sent another letter on June 26,
1998, requesting clarification and indicated that if complainant did
not respond within fifteen (15) calendar days of receipt of the letter,
his complaint would be dismissed. On July 1, 1998, the agency received
complainant's response to the June 26, 1998 letter, in which complainant
indicated that he discussed all of the bases raised in his complaint
with the EEO Counselor and renewed his request for a hearing.
On appeal, complainant contends that he did not check all of the
boxes on his formal complaint but only checked five boxes indicating
discrimination on the bases of sex, age, physical disability, mental
disability, and retaliation. In addition, complainant argues that the
agency's dismissal was improper and asks that his complaint be returned
to the agency for investigation or be forwarded to an AJ for a hearing.
We find that the agency improperly dismissed claim (1) on the grounds that
complainant failed to state a claim. Volume 64 Fed. Reg. 37,644, 37,656
(1999)(to be codified and hereinafter cited as 29 C.F.R. � 1614.107(a)(1))
provides, in relevant part, that an agency shall dismiss a complaint that
fails to state a claim. An agency shall accept a complaint from any
aggrieved employee or applicant for employment who believes that he or
she has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). In the present case, complainant alleges that he
was discriminatorily denied a transfer and, therefore, he states a claim.
We find that the agency's dismissal of the remainder of complainant's
complaint for failure to respond was improper. We note that there is
a dispute whether complainant raised additional bases of discrimination
during the counseling stage. The Commission has held that a complainant
may allege discrimination on all applicable bases, including sex, race,
national origin, color, religion, age, disability and reprisal, and
may amend his or her complaint at any time, including at the hearing,
to add or delete bases without changing the identity of the claim.
See Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970);
Dragos v. United States Postal Service, EEOC Request No. 05940563
(January 19, 1995). In addition, the record indicates that complainant
did respond to the agency's requests for clarification within the stated
time frame. Moreover, the Commission finds that complainant's response
is not reflective of delay or contumacious conduct. Finally, we note
that complainant's responses and arguments on appeal indicate that he
is alleging five bases of discrimination and we find that the issues
of denial of a transfer and harassment are sufficiently identified in
complainant's complaint for the agency to process complainant's complaint.
Finally, we note that complainant made a request for a hearing on May 18,
1998, and renewed this request in a letter received by the agency on July
1, 1998. Volume 64 Fed. Reg. 37, 644, 37, 657 (1999) (to be codified
and hereinafter referred to as 29 C.F.R. � 1614.108(g)), a complainant
may request a hearing at any time after 180 days have elapsed from the
filing of the complaint.
Accordingly, the agency's dismissal of complainant's complaint was
improper and is REVERSED and we REMAND the complaint for proper processing
in accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
the agency shall notify complainant of his right to request a hearing;
and the agency shall notify complaint that if he pursues a hearing he
should file the hearing request with the EEOC office indicated in the
agency's notification in accordance with 29 C.F.R. � 1614.108(g).
If complainant does not pursue his complaint through the hearing process,
the agency shall 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 notice to complainant of the right to request a
hearing, and if complainant does not request a hearing, a copy of the
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
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); 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).
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:
March 16, 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:
_______________ __________________________
Date
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.
2We note that although the agency does not define the issues addressed
in its FAD, a review of the record indicates that complainant raised
this issue in his formal complaint.
3According to the formal complaint contained in the record, complainant
alleged that he was subjected to discrimination based on sex, age,
physical disability, mental disability, and reprisal.