Vallery Vandegrift, Complainant, Janet Reno, Attorney General, Department of Justice, Agency.

Equal Employment Opportunity CommissionJul 6, 2000
01a02377 (E.E.O.C. Jul. 6, 2000)

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