Roger Pulido, Complainant,v.F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionApr 27, 2000
01a00665 (E.E.O.C. Apr. 27, 2000)

01a00665

04-27-2000

Roger Pulido, Complainant, v. F. Whitten Peters, Acting Secretary, Department of the Air Force, Agency.


Roger Pulido, )

Complainant, )

) Appeal No. 01A00665

v. ) Agency No. 95276

)

F. Whitten Peters, )

Acting Secretary, )

Department of the Air Force, )

Agency. )

____________________________________)

DECISION

On October 14, 1999, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) issued on September 30,

1999, 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.<1> Pursuant to 64 Fed. Reg. 37,644, 37,659

(1999) (to be codified at 29 C.F.R. � 1614.405), the Commission accepts

the complainant's appeal from the agency's final decision in the

above-entitled matter.

The record reflects, that on August 16, 1995, complainant initiated

contact with an EEO Counselor. Thereafter, on September 14, 1995,

complainant filed a formal complaint of discrimination on the basis of

reprisal (prior EEO activity). The formal complaint was comprised of

nine claims. Subsequently, the agency issued a final decision dismissing

eight of the nine claims. As stated, the agency did accept one claim

for investigation. The claim accepted was defined as follows; on an

on going basis, the Defense Logistics Agency and the Air Force have

concealed evidence that shows that complainant has recovered from an

on-the-job injury, he is on priority placement rolls, and he has timely

applied for WG-06 positions.

According to the record, the agency issued and conducted an investigation

with respect to the accepted issue. During the investigation, the record

reveals that the investigator attempted to obtain information from the

complainant with regards to dates, times and agency officials involved

in the above claim. However, the complainant refused to supply the

investigator with the information in which he requested. Consequently,

the investigation was incomplete.

On September 14, 1999, the agency issued a final decision dismissing the

accepted claim for untimely EEO Counselor contact and on the ground of

mootness. In their decision, the agency supplied no dates as to when the

incident(s) occurred and when initial EEO Counselor contact was made.

In this case, the Commission finds that the record is insufficient to

determine whether the complainant's initial EEO Counselor contact was in

fact untimely with respect to the accepted claim and whether the claim

is also moot. The Commissions notes that both the agency and complainant

have failed to substantiate their positions with respect to the issues of

timeliness and whether the claim accepted for investigation is in fact

moot. Accordingly, the Commission hereby VACATES the agency's final

decision and REMANDS the above claim to the agency for supplementation

of the record.

ORDER

The agency is ORDERED to conduct a supplemental investigation, which

shall include the following actions:

1. The agency shall ensure that the investigator obtains information

concerning the dates and the names of the individuals allegedly

responsible for concealing evidence that complainant had recovered from an

on-the-job injury, was on priority placement, and he had timely applied

for WG-06 positions. If the agency needs to contact the complainant for

this information, they will do so by a certified return receipt letter

addressed to complainant's last known address informing him that if he

does not respond within fifteen days (15) from the date he receives the

request, the agency may dismiss his claim for failure to cooperate.

2. The agency shall ensure that the investigator obtain any other

affidavits, records or information not specifically requested in this

ORDER, and not inconsistent with this opinion, which may be relevant in

defining the above claim.

3. The agency shall ensure that the investigator complete a supplemental

investigation within one-hundred and twenty (120) calendar days of

the date this decision becomes final. Thereafter, the agency shall

provide the complainant, within thirty (30) calendar days from the date

the agency completes the supplemental investigation, an opportunity to

respond to the supplemental investigative report. The agency shall then

take any action appropriate and consistent with complainant's response,

and issue a new final agency decision within thirty (30) calendar days of

complainant's response or, if complainant fails to respond, within thirty

(30) calendar days following the last day complainant would have been

permitted to respond. Copies of the completed supplemental investigation

and new final agency decision must be submitted 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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:

April 27, 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 after it was mailed. I certify

that this 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.