Sharon L. Thurman, Appellant,v.William S. Cohen, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.

Equal Employment Opportunity CommissionOct 5, 1999
01976411 (E.E.O.C. Oct. 5, 1999)

01976411

10-05-1999

Sharon L. Thurman, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Finance and Accounting Service), Agency.


Sharon L. Thurman, )

Appellant, )

)

v. ) Appeal No. 01976411

) Agency No. DFAS-IN-00IN-97-026

William S. Cohen, ) DFAS-IN-00IN-97-028

Secretary, )

Department of Defense, )

(Defense Finance and Accounting )

Service), )

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. The agency failed to supply a copy of a certified

mail return receipt establishing the date appellant received the agency's

final decision. The appeal was postmarked August 14, 1997. Accordingly,

since the agency failed to supply documentation from which the Commission

could determine the date appellant received the final decision, the

Commission presumes that appellant's appeal was timely filed. See 29

C.F.R. �1614.402(a). The appeal is accepted in accordance with EEOC

Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint for failure to cooperate.

BACKGROUND

The record of this matter is not entirely clear. However, upon review

it appears that the agency consolidated two complaints and issued

one final decision from which appellant has filed the instant appeal.

The record indicates that appellant sought EEO counseling on December

6, 1996 concerning allegations that certain employees in appellant's

division had been promoted from GS-5 to GS-7 positions the day after

appellant left the division. Pre-complaint counseling failed to resolve

appellant's concerns. Thereafter, on March 27, 1997 appellant filed a

formal complaint on the bases of race (African-American), sex (female),

physical disability (unspecified), mental disability (unspecified) and

reprisal (prior EEO activity). In agency case No. DFAS-IN-00IN-97-026

(026) appellant alleged that the agency had discriminated against

her in denying her promotions over the years. Appellant's March 27,

1997 complaint also alleged that the agency had improperly processed a

prior complaint.

The record further indicates that appellant sought counseling on February

19, 1997 concerning allegations of discrimination in that she was (1)

denied call pick-up access on her telephone; (2) denied the use of

cc:Mail; (3) denied training; (4) called a liar by an agency official; (5)

denied union representation; (6) denied Family and Medical Leave (FMLA),

and (7) humiliated and belittled by agency officials. Pre-complaint

counseling was unsuccessful. Subsequently, on April 7, 1997 appellant

filed a formal complaint on the bases of race (African-American), color

(unspecified), sex (female), mental disability (stress) and reprisal

(prior EEO activity). Appellant's formal complaint having agency case

No. DFAS-IN-00IN-97-028 (028)stated:

"The complaint has been over 15 days and I have not heard from you (EEO).

It's another situation where this office is not allowing me the right

to file."

In a letter to appellant's attorney dated June 5, 1997, appellant was

informed that the agency had joined case Nos. 026 and 028 for processing.

The June 5, 1997 letter also advised appellant that additional information

regarding her allegations was needed in order to continue processing the

complaints. Appellant was advised to respond to the agency's request

within 15 days. On June 16, 1997, appellant's attorney requested an

additional 15 days in which to respond. The agency did not provide a

response to the June 16, 1997 letter. On June 23, 1997 appellant's

attorney again sent a letter to the agency regarding appellant's

complaint. Therein, appellant's attorney seemed to indicate that there

was some confusion as to the exact matter to which appellant was asked

to provide additional information, referring to both an "EEO problem"

and a "notice of proposed removal." The letter further indicated that

appellant would need an additional fifteen (15) days to respond to the

agency's specific request.

On July 8, 1997 the agency issued its final decision (FAD) based on

appellant's March 27, 1997 and April 7, 1997 formal complaints. The FAD

determined that appellant failed to respond within fifteen (15) days to

the agency's June 5, 1997 request for additional information. The FAD

dismissed appellant's complaint pursuant to 29 C.F.R. �1614.107(g).

ANALYSIS AND FINDINGS

In the instant case, the agency dismissed appellant's complaint for

failure to cooperate pursuant to 29 C.F.R. �1614.107(g) which 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 fifteen

(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.

Upon review of the instant record, the Commission is not persuaded by the

contentions of appellant and her attorney that they failed to respond

to the agency's request for additional information because they were

unclear of the agency's specific request in its June 5, 1997 letter.

Appellant has failed to present any evidence to support her contention

that she and her attorney were so confused by the agency's letter

that they could not respond with 15 days. We find further, however,

that the record contains sufficient information from which appellant's

complaint can be adjudicated. The report of the EEO Counselor indicates

that appellant's allegations have been investigated and the agency has

not claimed that the record does not contain sufficient information for

issuing a decision. In that regard, the Commission shall REMAND the

complaint for processing for the reasons set forth in this decision.

CONCLUSION

Accordingly, the agency's decision to dismiss appellant's complaint

was improper, and is hereby REVERSED. The complaint is REMANDED to the

agency for further processing in accordance with this decision and the

Order below.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

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

that it has received the remanded allegations 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:

October 5, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations