01A43328_r
11-24-2004
Miranda Moore, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Miranda Moore v. Department of Labor
01A43328
November 24, 2004
.
Miranda Moore,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A43328
Agency No. 03-04-148
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 9, 2004, dismissing her complaint of unlawful
employment discrimination. In her complaint, complainant alleged that
she was subjected to discrimination on the basis of sex (female) when
she was subjected to a hostile work environment and sexual harassment
since approximately July 2002.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(7),
for failure to cooperate. 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 finds that the agency's dismissal of the complaint for
failure to cooperate was proper. The record contains a copy of a letter
dated January 13, 2004, which was received by complainant on January
14, 2004. The January 13, 2004 letter confirmed the January 12, 2004
teleconference between an EEO Investigator and complainant that the
agency had granted complainant a 15-day extension to submit a completed
affidavit. Additionally, the letter stated that the completed affidavit
was due no later than January 27, 2004. Moreover, the letter stated
that failure to submit a completed affidavit within the �prescribed
15 days� may result in the agency closing complainant's complaint for
failure to submit requested information.
There is no indication that complainant submitted a completed affidavit
to the agency. Complainant does not assert that she submitted an
affidavit in response to the January 13, 2004 agency request. On appeal,
complainant asserts: �I have been engaged in another legal matter that
arose unexpectedly in fall 2003. Due to the severity and critical nature
of this surprise situation, the majority of my time and concentration
had been directed into dealing with this case.� The Commission finds
this excuse to be an unacceptable reason for not cooperating with the
agency in processing her case. Therefore, the Commission finds that the
agency's decision dismissing the complaint was proper.
The agency's decision to dismiss the complaint is AFFIRMED.
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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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 24, 2004
__________________
Date