Susan R. Brakefield, Complainant,v.Gary Locke, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionAug 11, 2009
0120091386 (E.E.O.C. Aug. 11, 2009)

0120091386

08-11-2009

Susan R. Brakefield, Complainant, v. Gary Locke, Secretary, Department of Commerce, Agency.


Susan R. Brakefield,

Complainant,

v.

Gary Locke,

Secretary,

Department of Commerce,

Agency.

Appeal No. 0120091386

Agency No. 086300217

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated January 15, 2009, dismissing her complaint of

unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),

as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds

that complainant's complaint was improperly dismissed pursuant to 29

C.F.R. � 1614.107(a)(2) for raising matters that had not been brought

to the attention of an EEO Counselor.

The record reveals the following:

Complainant initiated contact with the agency's Equal Employment

Opportunity (EEO) Office on September 30, 2008, alleging that due to

her age, she was "being passed up for promotions." The EEO Counselor

left telephone messages for complainant on October 8, 9, 14, and

16, 2008. Since the EEO Counselor was unable to reach complainant,

and complainant had not responded to the messages left, the agency

EEO Office issued complainant a Notice of Right to File [a formal

complaint of discrimination] within 15 Calendar Days on October 27, 2008.

The U.S. Postal Service's PS Form 3811, Domestic Return Receipt, shows

that complainant received the notice on October 29, 2008. On November

12, 2008, complainant filed this formal complaint. In her complaint,

complainant alleged that she "[a]pplied for at least six supervisor

positions in CPS" and that she was "[t]urned down for promotions."

In her complaint, complainant also stated, "Merit increases not given

due to hours." Because complainant's complaint lacked specificity, the

Department's Office of Civil Rights (OCR) sent complainant a Request

for Information (RFI) on December 11, 2008. On December 30, 2008,

complainant responded to the RFI via facsimile.

In her [now revised] formal complaint, complainant alleged that

she was subjected to discrimination on the bases of disability (Not

Specified), age (56), and reprisal for prior protected EEO activity

under the Rehabilitation Act when: 1) she was not selected for the

position advertised under Recruiting Bulletin/Vacancy Announcement

LARO-SFR-08-06071-02; 2) she was not selected for the position advertised

under Recruiting Bulletin/Vacancy Announcement LARO-SFR-08-15003-05;

3) she was not selected for the position advertised under Recruiting

Bulletin/Vacancy Announcement LARO-SFR-08-06079-03; 4) she was not

selected for the position advertised under Recruiting Bulletin/Vacancy

Announcement LARO-SFR-08-06065-04; 5) she was not selected for the

position advertised under Recruiting Bulletin/Vacancy Announcement

LARO-SFR-08-06037-01; 6) she was not selected for the position advertised

under Recruiting Bulletin/Vacancy Announcement 04-08-GG-0303-05; 7)

she was not selected for the position advertised under Recruiting

Bulletin/Vacancy Announcement LARO-SFR-06-065-11; 8) she was not

selected for the position of Senior Field Representative, GG-0303-06, as

advertised under Recruiting Bulletin LARO-SFR-08-06-065-12; and 9) she

is not provided the same number of cases to work as other Senior Field

Representatives with less seniority, resulting in a loss of benefits

and adversely affecting her pay.

On January 15, 2009, the agency dismissed complainant's formal

complaint without prejudice because complainant had set forth claims

that purportedly had not been raised to the EEO Counselor and because her

response did not provide sufficient information for OCR to determine if

her claims met the procedural requirements of Title 29, Code of Federal

Regulations (C.F.R.), section (�) 1614.107(a)(2). Notwithstanding

complainant's lack of cooperation with the agency's EEO Counselor, OCR,

in its final decision, provided complainant "with an opportunity to return

and properly complete the informal process." In its appeal statement, the

agency argues that by deliberately refusing to provide the EEO Counselor

with specific information, complainant prevented the EEO Counselor from

properly counseling her, as well as attempting to resolve the complaint

at the lowest level, the very purpose of the informal process. Moreover,

the agency maintains that by refusing to cooperate with the EEO Counselor,

complainant is attempting to bypass the mandated informal EEO complaint

process.

Generally, the Commission has held that an agency should not dismiss

a complaint when it has sufficient information upon which to base an

adjudication. See Ross v. United States Postal Service, EEOC Request

No. 05900693 (August 17, 1990); Brinson v. United States Postal Service,

EEOC Request No. 05900193 (April 12, 1990). 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 dismissed for failure to cooperate. See Card

v. United States Postal Service, EEOC Request No. 05970095 (April 23,

1998); Kroeten v. United States Postal Service, EEOC Request No. 05940451

(Dec. 22, 1994).

In the instant case, we find that, although complainant has not explained

why she was not responsive to the EEO Counselor, there is insufficient

evidence to support a conclusion that she purposely engaged in delay

or contumacious conduct. Instead, we find that there was sufficient

information in the record to have permitted the agency to have conducted

the investigation (by collecting evidence from management witnesses)

without complainant's informal counseling to permit an adjudication on

the merits. A review of the record indicates that while complainant

briefly spoke with the agency's EEO Counselor assigned to her in this

matter, complainant did subsequently provide detailed information in

her December 30th response to the RFI via facsimile. The information

provided on complainant's claims was sufficient to identify the specific

management actions she is concerned with, the relevant timeframes and

the responsible management officials. This is sufficient information

to permit management witnesses to respond to complainant's allegations.

See Hearl v. United States Postal Service, EEOC Appeal No. 0120082505

(July 28, 2008). Whether or not the information provided by complainant

is sufficient evidence to support her claim of discrimination can be

addressed in an adjudication of the merits of her complaint. And notably,

while not pivotal in this case, the agency should not have issued a Notice

of Right to File to complainant if she had not met the requirements of

its informal counseling process.

Accordingly, we conclude that the agency should have conducted its

investigation of the complaint without complainant's informal counseling

and allowed for an eventual adjudication on the merits rather than

dismissing the complaint. The complaint is hereby remanded to the agency

for further processing in accordance with this decision and the Order

below.

ORDER (E0408)

The agency is ordered to process the remanded claims in accordance with

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 (K1208)

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 77960, Washington,

DC 20013. 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 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) (1994 & Supp. IV 1999).

If the complainant files a civil action, the administrative processing of

the complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 77960,

Washington, DC 20013. 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 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 (R0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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, Director

Office of Federal Operations

August 11, 2009

__________________

Date

2

0120091386

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

5

0120091386