01a02377
07-06-2000
Vallery Vandegrift, Complainant, Janet Reno, Attorney General, Department of Justice, Agency.
Vallery Vandegrift v. Department of Justice
01A02377
July 6, 2000
Vallery Vandegrift, )
Complainant, )
)
)
) Appeal No. 01A02377
Janet Reno, ) Agency No. B972230
Attorney General, )
Department of Justice, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision
of the agency concerning her complaint of unlawful discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of
1973, 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.
The record indicates that on July 19, 1996 complainant contacted an
EEO counselor regarding claims of discrimination. Complainant alleged,
in pertinent part, that she was discriminated against when:
(1) she was denied a within grade increase
(2) she was denied a disability accommodation;
(3) she was issued a Performance Improvement Plan (PIP) due to
unsatisfactory work performance;
(a) the agency openly impugned her character and misrepresented alleged
performance deficiencies to co-workers and non-agency employees;
(b) the agency interrupted her discussions with opposing counsel, berated
opposing counsel, and threatened criminal action against opposing counsel
in her presence and without her knowledge;
(c) she was subjected to a hostile work environment on a continuing basis
because of alleged acts or omissions of her supervisors in disregard for
their duties and responsibilities as attorneys under the code of
Professional Responsibility/Ethics;
(4) she was subjected to and endured a hostile work environment on a
continuing basis;
(5) the agency wanted her to accept false claims against herself, resign
from her position, and engage in non-work related activities with
supervisors outside of the normal work hours.
Informal efforts to resolve complainant's concerns were unsuccessful.
Accordingly, on December11, 1996, complainant filed a formal complaint
alleging that she was the victim of unlawful employment discrimination on
the bases of sex (female), age (48), national origin (Greek), disability
(mental) and reprisal (prior EEO activity).
On December 16, 1997, the agency issued a final decision that accepted
some claims for investigation and dismissed other claims.
On January 4, 2000, the agency issued a final decision that is the subject
of the instant appeal, dismissing for failure to cooperate the claims
previously accepted for investigation and identified above as claims 1
- 5. Specifically, the agency found that complainant failed to respond
to the agency's November 24, 1999 request for specific information.
The record indicates that in several letters to the agency, from June
1997 through July 1998, complainant's representative indicated that due
to severe memory loss caused by electroconvulsive therapy, complainant
was unable to cooperate with the agency's investigation of her complaint
claims. The letters from complainant's representative requested that the
agency delay the investigation on complainant's claims of discrimination
until further notice that complainant was able to meet with the agency's
investigator. On November 24, 1999, the agency wrote to complainant
requesting that she provide a specific date on which she would be
able to continue the processing of her complaint of discrimination.
On December 6, 1999, in response to the agency's November 24, 1999
request, complainant's representative again requested that the agency
delay its investigation of the complaint and indicated that complainant
was unable to cooperate. The December 6, 1999 correspondence failed to
identify a specific date on which complainant would capable of pursuing
her discrimination complaint.
Volume 64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(7)), provides that the agency shall
dismiss 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 15 days of its receipt or the response does not address
the agency's request. Instead of dismissing for failure to cooperate,
the complainant may be adjudicated if sufficient information for that
purpose is available.
The Commission has previously held that only where the complainant has
engaged in delay or contumacious conduct and the record is insufficient to
permit adjudication will the Commission allow a complaint to be dismissed
for failure to prosecute. See Delgado v. United States Postal Service,
EEOC Request No. 05900859 (October 25, 1990).
The record reflects that complainant repeatedly requested that the
agency delay indefinitely its investigation of her discrimination
complaint. The record also reflects that the agency allowed complainant
approximately three years in which to make a decision regarding the
continued processing of her complaint. The agency letter dated November
24, 1999, explicitly stated that complainant's failure to respond to its
request could result in the dismissal of the complaint. The evidence
of record, clearly indicates that complainant's request for delay in
processing her complaint would proceed indefinitely. In light of the
circumstances herein, it is the decision of this Commission that the
agency's dismissal of complainant's complaint for failure to prosecute
was proper. The agency's decision is hereby AFFIRMED for the reasons
set forth herein.
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 (S0400)
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. 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 (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:
July 6, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations