01990866
09-03-1999
Terry S. Boone, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Terry S. Boone, )
Appellant, )
) Appeal No. 01990866
v. ) Agency No. 9600216003
)
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning his 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 appeal is accepted in accordance
with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed a portion
of appellant's complaint for failure to cooperate.
BACKGROUND
Appellant filed a formal complaint on October 23, 1995, alleging
discrimination on the bases of race (White) and reprisal when he alleged
disparate treatment because:
1) on August 9, 1995,the Public Works Officer (PWO) suggested that
appellant might have a racial bias against the Assistant Public Works
Officer (APWO);
2) on September 15, 1995, APWO counseled appellant for bypassing him on
a regular basis;
3) APWO reassigned appellant's staff parking space without consultation;
4) APWO obstructed the timely processing of travel orders needed to keep
the station in compliance with federally mandated training requirements;
5) APWO unnecessarily restricted the issuance of Public Works conference
room keys to the Environmental Division;
6) APWO, when acting as PWO at a department staff meeting, took no action
against a department staff member who verbally assaulted appellant.
The agency issued FAD-1 on December 5, 1995. The Commission affirmed
the agency's FAD-1 in Terry S. Boone v. Department of Navy, EEOC
Appeal No. 01962489 (December 5, 1996). Appellant then initiated
a request to the Commission to reconsider the decision of December
5, 1996. The Commission granted the request for reconsideration, in
Terry S. Boone v. Department of Navy, Request No. 05970375 (July 30,
1998). The Commission reversed the prior EEOC Appeal No. 01962489 and
remanded the complaint to the agency in order to process the appellant's
allegations according to EEOC Request No. 05970375. The Commission found
that appellant's allegations were not clear. We ordered the agency to
have appellant clarify his complaint. Specifically, the Commission asked
for more information as to whether appellant's allegation constituted
discriminatory treatment or harassment and information regarding the
dates of the alleged discriminatory incidents. In order to comply with
the Commission's decision, the agency requested in writing that appellant
clarify his allegations and the date of their occurrence on August 10,
1998. The agency also included a notice of the proposed dismissal if
the appellant refused to comply with the request. The written request
was received by appellant on August 20, 1998. Appellant's response
was due 15 days after receipt of the written request which would have
been on September 4, 1998. The agency did not receive any response by
that date nor since that date. Therefore, the agency issued FAD-2 on
September 30, 1998. In FAD-2, the agency accepted allegations (1)-(2)
and dismissed allegations (3)-(6) for failure to cooperate, pursuant to
29 C.F.R. �1614.107(g). This appeal followed.
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 when 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.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information is available for that purpose.
The Commission has previously held that the above regulation is applicable
�only in cases where there is a clear record of delay or contumacious
conduct by the complainant.� See Anderson v. United States Postal
Service, EEOC Request No. 05940850 (February 24, 1995).
Upon careful review of the record, we find that the agency satisfied the
regulatory requisites of 29 C.F.R. �1614.107(g), and appellant's actions
in this case constituted a failure to cooperate. The appellant has never
provided the information that the agency requested on August 10, 1998.
On appeal, appellant has also failed to provide the information and has
not given any explanation for his failure to provide the information.
The agency properly notified appellant of his obligation to cooperate
and the possible consequences of his failure to do so. It also allowed
him the requisite amount of time to respond to the written request.
Therefore, the Commission finds that the agency properly dismissed
appellant's allegations, pursuant to 29 C.F.R. �1614.107(g).
CONCLUSION
Accordingly, the decision of the agency is AFFIRMED.
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 (S0993)
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. 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. If you file a request to reconsider and also file a
civil action, 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:
September 3, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations