01986136
09-13-1999
Rodney Ambrose, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Rodney Ambrose v. Department of the Navy
01986136
Sept. 13, 1999
Rodney Ambrose, )
Appellant, )
)
v. ) Appeal No. 01986136
) Agency No. 9662383005
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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. Appellant received the agency's initial final
decision on July 20, 1998. The appeal was received by the Commission
on August 10, 1998. A corrected final agency decision was received by
appellant on August 29, 1998. Accordingly, the appeal is timely (see
29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order
No. 960, as amended.<1>
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
appellant's complaint on the grounds of failure to cooperate.
BACKGROUND
Appellant initiated contact with an EEO Counselor on November 27, 1995.
On March 29, 1996, appellant filed a formal EEO complaint wherein he
alleged that he had been discriminated against in reprisal for his
previous EEO activity when:
1. He was detailed to a ship on November 17, 1995, and was not permitted
a reasonable amount of official time to consult with his attorney or to
remain in the Mariner pool.
2. He had not obtained prescription eye glasses and was not given a
medical clearance form 107 on the date he was ordered to report to his
assignment.
3. He received a ten-day suspension for refusing to report to his
assigned ship.
The complaint was accepted for investigation. The record reveals that
upon completion of the investigation, appellant requested a hearing before
an EEOC Administrative Judge (AJ). On July 14, 1997, the AJ issued an
Acknowledgment Order to both parties. The Acknowledgment Order stated
in part that both parties must file a list of proposed witnesses within
thirty days of the date of the Order. The agency submitted its proposed
witness list, but appellant did not respond to the Acknowledgment Order.
On March 2, 1998, the AJ issued an Order wherein he stated that he had
not received any communication from appellant in writing or by telephone
with respect to the complaint. The AJ stated that if he did not receive
written correspondence from appellant within twenty days of the date
of the Order indicating that appellant wished to pursue the complaint,
he would return the case to the agency for dismissal of the complaint or
for a final agency decision without a hearing. On April 14, 1998, the AJ
ordered that since appellant did not respond to the Order dated March 2,
1998, the complaint was remanded to the agency with a recommendation
that it be dismissed or that a final decision be issued based on the
existing record.
In its final decision, the agency dismissed appellant's complaint on the
grounds that appellant failed to cooperate. The agency based its decision
on appellant's failure to respond to the AJ's Order dated March 2, 1998.
Thereafter, appellant filed the instant appeal.
In response, the agency asserts that the record clearly demonstrates that
appellant's continuous failure to respond to the AJ's Order constitutes
delay and contumacious conduct. The agency maintains that it was
appropriate to dismiss this complaint based on appellant's failure to
cooperate rather than adjudicate it based on the record. According to
the agency, appellant offered no explanation as to why he failed to
pursue his opportunity for a hearing.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(g) provides that the agency shall
dismiss a complaint or a portion 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. Instead of dismissing for failure to cooperate,
the complaint may be adjudicated if sufficient information for that
purpose is available.
The Commission notes that an agency's decision to invoke the provisions
of 29 C.F.R. �1614.107(g) should be made by the agency only when there
is a clear record of delay or contumacious conduct by the complainant.
Connolly v. Papachristid Shipping Ltd., et al., 504 F.2d 917 (5th
Cir. 1974). This is because implicit in the scheme of attempted control
of the evil of discrimination by administrative and judicial machinery
is a degree of cooperation by the complaining party. Jordan v. United
States, 522 F.2d 1128 (8th Cir. 1975). Accordingly, the obligation
to informally and expeditiously resolve complaints is imposed on both
parties.
Based on the record herein, we find that the agency improperly dismissed
appellant's complaint for failure to cooperate. The agency decided
to dismiss the complaint because appellant failed to contact the AJ in
any fashion, and appellant did not provide an explanation as to why he
failed to pursue the hearing that he had requested. We note that when
a complainant fails to cooperate or prosecute at the hearing stage, the
Commission has held that the complainant has forfeited his right to a
hearing on his complaint. Wrenn v. Department of Veterans Affairs, EEOC
Request No. 05900010 (March 27, 1990). Typically, the Commission finds,
however, that a complainant's failure to cooperate at the hearing stage,
without more, is not a sufficient showing to warrant cancellation of his
complaint on the grounds of failure to cooperate. The Commission had
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. U.S. Postal Service, EEOC Request No. 05900693 (August 17,
1990); Brinson v. U.S. Postal Service, EEOC Request No. 05900193 (April
12, 1990). Furthermore, only in cases where the appellant has engaged in
delay or contumacious conduct and the record is insufficient to permit
adjudication has the Commission allowed a complaint to be dismissed
for failure to cooperate. See Raz v. U.S. Postal Service, EEOC Request
No. 05890177 (June 14, 1989); Delgado v. U.S. Postal Service, EEOC Request
No. 05900859 (October 25, 1990). We note that sufficient information is
likely to be available in a case processed to the hearing stage to permit
an adjudication on the merits. Accordingly, the agency's final decision
is REVERSED and the complaint is REMANDED to the agency for further
processing consistent with the Order below and applicable regulations.
ORDER
The agency is ORDERED to issue a final decision on the merits of
appellant's complaint based on the evidence in the record. The agency
shall issue a final decision within thirty (30) calendar days of the
date this decision becomes final.
A copy of the agency's final decision must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Sept. 13, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The final agency decision received by appellant on August 29, 1998,
was issued after appellant notified the agency that the issue and bases
were improperly framed in the first agency decision.