01974466
05-18-2000
Ronald W.R. Turner, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Ronald W.R. Turner v. Department of Veterans Affairs
01974466
May 18, 2000
Ronald W.R. Turner, )
Complainant, )
)
v. ) Appeal No. 01974466
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
________________________________)
DECISION
Based on a review of the record, we find that the agency improperly
dismissed complainant's individual complaint, pursuant to 64
Fed. Reg. 37,644, 37,656 (to be codified at 29 C.F.R. � 1614.107(a)(7),
for failure to cooperate.<1> Complainant alleged that he was
discriminated against on the bases of race (Black), color (black),
national origin (American), sex (male), and physical and mental disability
(not specified), when he was not promoted to the following positions:
(1) Supervisor Medical Administration Specialist, GS-3-1-5, pursuant
to MP# 95-04 on or around May 19, 1994; (2) Patient Services Assistant
GS-303-5, sometime in 1994; and (3) Patient Services Assistant, GS-303-5,
pursuant to MP# 95-10, on or around February 27, 1995.
Believing he was a victim of discrimination, complainant sought EEO
Counseling on February 20, 1996, and filed a class complaint on April 25,
1996. On November 7, 1996, an EEOC Administrative Judge (AJ) issued a
Recommended Decision (RD) denying class certification, and recommending
dismissal of complainant's class complaint. The agency adopted the
AJ's RD in its FAD (FAD1) dated November 27, 1996. In FAD1, the agency
stated that it appeared complainant had not timely sought EEO counseling
concerning his individual allegations of non-promotion set forth above,
and the agency provided complainant fifteen days to provide the agency a
written response explaining why he had not sought timely EEO counseling.
Complainant appealed FAD1, and subsequently, the agency issued a second
FAD (FAD2), dismissing complainant's individual complaint for failure to
cooperate. In FAD2, the agency noted that complainant failed to respond
to the agency's request in its FAD1. Complainant timely appeals FAD2.<2>
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides that an 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 has stated that "it is only in cases where the
complainant has engaged in delay or contumacious conduct and the record
is insufficient to permit adjudication that the Commission has allowed
a complaint to be canceled for failure to prosecute/cooperate." Kroeten
v. U.S. Postal Service, EEOC Request No. 05940451 (December 22, 1994).
The Commission notes that complainant timely appealed the agency's
dismissal of his class action complaint (FAD1), and that appeal
was assigned docket number 01971966. Thus, as complainant's class
complaint allegation was pending before the Commission, the agency
should have held in abeyance any action on complainant's individual
claims of discrimination. Accordingly, the agency's decision to dismiss
complainant's individual complaint in FAD2 for failure to cooperate
was improper.
On remand, the agency shall hold complainant's individual complaint
in abeyance until a decision addressing complainant's appeal of FAD1,
which has been assigned docket number 01971966, is issued. Thereafter,
if the agency's dismissal of complainant's class action complaint in FAD1
is affirmed, and no further appeal is filed, the agency shall process
complainant's individual complaint pursuant to 29 C.F.R. part 1614.
Accordingly, we VACATE the FAD and REMAND the allegation to the agency
in accordance with this decision and the ORDER below.
ORDER
1. The agency is ORDERED to process the remanded allegations in accordance
with 64 Fed. Reg. 37,644, 37,659 (to be codified at 29 C.F.R. � 1614.108).
The agency shall acknowledge to the complainant that it has received the
remanded allegations within thirty (30) calendar days of the date this
decision becomes final. The agency shall thereafter hold complainant's
individual complaint of discrimination in abeyance pending a determination
on appeal concerning the dismissal of complainant's class complaint in
FAD1, which is assigned docket number 01971966.
Thereafter, the agency shall take appropriate action consistent with our
decision in docket number 01971966. If complainant's class complaint
is upheld, the agency shall process complainant's class complaint
consistent with the Commission's Regulations at 29 C.F.R. � 1614.204
et seq. If complainant's class complaint is dismissed, and no further
appeal is filed, which would warrant further abeyance of complainant's
individual complaint, then the agency shall process complainant's
remanded, individual complaint of discrimination pursuant to the
Commission's Regulations at 29 C.F.R. part 1614.
A copy of the agency's letter of acknowledgment to complainant and all
applicable 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:
May 18, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
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.
2The Commission notes that FAD2 is dated March 6, 1997, and complainant's
appeal is postmarked May 9, 1997. The certified receipt in the file
does not correspond to FAD2, as it is dated December 10, 1996, and
it provides an Article Number, 77602, which does not appear on FAD2.
We therefore will address complainant's appeal.