01A00028
07-28-2000
Royal B. Cutler, Complainant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Royal B. Cutler v. Department of Transportation
01A00028
July 28, 2000
.
Royal B. Cutler,
Complainant,
v.
Rodney E. Slater,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A00028
Agency Nos. DOT-1-97-1080R & DOT-1-97-1096R
DECISION
Upon review, the Commission finds that the complaints were improperly
dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(7)).<1>
The record shows that Complainant claimed that:
(1) he had been discriminated against on the bases of sex and reprisal
when: (a) since January 1997, he was subjected to discriminatory
statements and jokes about gays and lesbians from agency employees; (b)
he was forced to work with one employee who did not want to work with
him; (c) he was denied training, advancement, overtime, FAA projects and
information; (d) his computer and Official personnel file was tampered
with, offensive material was left in his cubicle and he was accused
of running a gambling pool; (e) his supervisor refused to talk to him,
only communicating with him by e-mail; and
(2) he was discriminated against on the basis of reprisal when he was
transferred from his position in ACT-260 to ACT-210, denied meaningful
projects and excluded from staff meetings.
By letter dated June 15, 1999, and sent by overnight mail to
Complainant's representative, the agency informed Complainant that it
had tried �numerous times to contact [him] by telephone to schedule a
time to interview [him] regarding [his] two pending EEO complaints�.
The agency further advised Complainant to contact the EEO investigator
and informed him that his failure to do so, within 10 calendar days,
could result in the dismissal of his cases.
By final agency decision dated July 12, 1999, the agency dismissed the
complaints for failure to cooperate.
On appeal, Complainant contends that he never received the June 15,
1999 letter.
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) requires an agency to dismiss
a complaint for failure to cooperate, or alternatively, to adjudicate
the complaint if sufficient information for that purpose is available.
The regulation is in applicable under the following circumstance:
(1) the agency has provided the complainant with a written request to
provide relevant information or to otherwise proceed with the complaint;
(2) the request included a notice of the proposed dismissal for failure to
respond within 15 days of receipt of the request; and (3) the complainant
either fails to respond to the request within 15 days of receipt or
the complainant's response does not address the agency's request.
The Commission has held that the regulation is applicable, however,
only in cases where there is a clear record of delay or contumacious
conduct by the complainant. See Anderson v. U.S. Postal Service, EEOC
Request No. 05940850 (February 24, 1995).
A review of the record persuades the Commission that the complaints were
improperly dismissed. The record shows that Complainant's representative
is not an attorney. The record further shows that the letter which
informed Complainant about his obligation to cooperate with the EEO
investigation was sent to said representative and not to Complainant.
The agency has failed to show that Complainant did in fact receive
said letter. Moreover, EEOC Regulations require that a Complainant be
granted 15 calendar days, rather than 10 calendar days, to respond to a
request for further information. Based on the foregoing, the agency's
final decision is REVERSED. The complaints are hereby REMANDED for
further processing in accordance with the Order below.
ORDER (E0400)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant 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 complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (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:
______________________________
Carlton M. Hadden, Acting Director
Office of Federal Operations
July 28, 2000
__________________
Date
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.