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