Ronza R. Nash, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.

Equal Employment Opportunity CommissionNov 1, 1999
01992394 (E.E.O.C. Nov. 1, 1999)

01992394

11-01-1999

Ronza R. Nash, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Logistics Agency), Agency.


Ronza R. Nash v. Department of Defense

01992394

November 1, 1999

Ronza R. Nash, )

Appellant, )

)

v. ) Appeal No. 01992394

) Agency No. AA-99-007

William S. Cohen, )

Secretary, )

Department of Defense, )

(Defense Logistics Agency), )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency concerning her 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., Section 501 of the Rehabilitation Act of 1973, as

amended, 29 U.S.C. �791 et seq., and the Age Discrimination in Employment

Act, as amended, 29 U.S.C. �621 et seq. The final agency decision was

issued on January 27, 1999. The appeal was postmarked February 4, 1999.

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.

ISSUE PRESENTED

The issue presented on appeal is whether the agency properly dismissed

an allegation of appellant's complaint on the grounds of failure to

cooperate.

BACKGROUND

Appellant initiated contact with an EEO Counselor on December 8, 1998.

On January 19, 1999, appellant filed a 201-page formal EEO complaint

wherein she alleged that she had been discriminated against on the bases

of her race (Negro), color (brown), sex (female), age (date of birth,

10/23/52), religion (Lutheran), physical disability (high blood pressure,

insomnia), mental disability (confused, seeing a psychiatrist), and in

reprisal for her previous EEO activity when:

1. She was subjected to harassment; and

2. She was ridiculed in front of coworkers.

By letter dated January 21, 1999, the agency requested that appellant

provide specific information regarding her allegations: namely, to include

who, what, when, and how she was subjected to harassment and ridiculed

in front of co-workers; to describe how the terms and conditions of her

employment were affected by the identified actions; and to include who,

what, how, and when she was subjected to retaliation. The agency informed

appellant that failure to address and provide specificity about these

matters within fifteen (15) calendar days would result in the dismissal

of her complaint.

In a letter dated January 22, 1999, appellant submitted her response.

Appellant indicated that a recent incident of harassment occurred on

January 19, 1999, when her supervisor made an entry on her 7B card

claiming she abused her sick leave. Further, appellant described

how at staff meetings she is singled out "with nitpick harassing

comments" witnessed by all the attendees. Appellant indicated that

her two co-workers harass her and leave her out of work assignments.

Appellant stated that these incidents were the most recent and were in

addition to all those set forth in her 201-page formal complaint.

In its final decision, the agency dismissed the allegation of appellant's

complaint dealing with appellant being ridiculed in front of her

coworkers. The agency dismissed this allegation on the grounds that

appellant failed to cooperate. The agency determined that appellant

failed to address and provide specificity in her response with regard

to this allegation. Thereafter, appellant filed the instant appeal.

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

the allegation of appellant's complaint concerning appellant being

ridiculed in front of her coworkers for failure to cooperate. First,

appellant clearly responded to the agency's request by further identifying

recent incidents of alleged discrimination, including the names of the

responsible officials. Furthermore, we note that appellant's 201-page

formal complaint contains detailed accounts of incidents involving

various named employees, which appellant alleged constituted prohibited

harassment. 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). We find that sufficient

information is available concerning appellant's complaint to permit

adjudication on the merits.

Finally, we find that the agency's determination to separate appellant's

complaint of harassment into to separate issues, i.e., an issue of

harassment and an issue that she was being ridiculed, is confusing

at best. Clearly, appellant is alleging that she was subjected to a

pattern of harassment, which created a hostile environment, and being

ridiculed in front of others is but one form of the alleged harassment.

The Commission has previously held that an agency should not ignore the

"pattern aspect" of a complainant's allegations and define the issues

in a piecemeal manner where an analogous theme unites the matters

complained of. Meaney v. Department of the Treasury, EEOC Request

No. 05940169 (November 3, 1994). Therefore, on remand the agency should

view appellant's allegations as a whole complaint of harassment and

address it accordingly.

CONCLUSION

The agency's final decision is REVERSED and the complaint, as defined

herein is REMANDED to the agency for further processing consistent with

the Order below and applicable regulations.

ORDER (E1092)

The agency is ORDERED to process the remanded complaint in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded complaint within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant 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 (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:

November 1, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations