01A11696_r
08-13-2002
William E. Van Houten, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
William E. Van Houten v. Department of the Army
01A11696
August 13, 2002
.
William E. Van Houten,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A11696
Agency No. FB 00-022
DECISION
Complainant alleged that he was subjected to discrimination on the
bases of race, color, religion, national origin, disability, sex and in
reprisal for prior protected activity when on unspecified dates he was
harassed by his supervisors.
The record indicates that on October 31, 2000, complainant filed an
EEO complaint and attached approximately 500 pages to support his
claims. After reviewing the complaint and the attached documents, the
agency determined that complainant did not indicate any specific acts and
dates of management's actions that would be discriminatory. On November 8,
2000, the agency sent a document identified as �Letter of Specificity�
to complainant, informing him of the need to be specific regarding
his claims regarding the alleged incidents and dates of occurrence and
the persons responsible for those alleged incidents. The agency also
notified complainant that failure to furnish the requested information
within 15 calender days of receipt of the agency's letter would result
in the dismissal of his complaint. Complainant received the agency's
letter on November 10, 2000.
The agency received a letter from complainant dated November 11, 2000,
expressing his dissatisfaction with the processing of his complaint. After
reviewing the complainant's letter the agency determined that complainant
did not provide the information requested in the Letter of Specificity
and on December 6, 2000, the agency dismissed the complaint for failure
to cooperate. The agency further construed complainant's complaint as
being comprised of an additional claim raised in the November 11, 2000
letter discussed above, regarding his dissatisfaction with the processing
of the instant complaint. Specifically, the agency determined that this
additional claim related to complainant's claim that �the tone� of the
agency's November 8, 2000 letter was uncalled for. The agency dismissed
this claim pursuant to 29 C.F.R. � 1614.107(a)(7).
After a review of the record in this case the Commission finds
that the complainant did not furnish the requested information to
agency . Generally, the decision to cancel a complaint for failure
to prosecute should only be made by the agency when there is a clear
record of delay or contumacious conduct by the plaintiff. Connolly
v.Papachristid Shipping Ltd., et al., 504 F.2d 917 (5th Cir.1974). Here,
complainant timely responded to the agency's letter, although his
response failed to furnish the specific information requested by the
agency. The Commission finds that complainant's conduct does not rise
to the level of undue delay and contumacious conduct. The Commission
nonetheless acknowledges the agency's need for specificity of the claims
for further processing of the matters raised in the instant complaint.
Accordingly, the agency's decision to dismiss the complaint for failure
to cooperate REVERSED. The complaint is REMANDED to the agency for
further processing as ordered below. Complainant is advised, however,
to cooperate in the processing of his complaint or face possible future
dismissal for failure to cooperate.
However, the Commission further notes that the agency determined that
complainant raised an additional claim in a letter from complainant dated
November 11, 2000, that addressed the purportedly improper dissatisfaction
of the processing of the instant complaint. The Commission determines
that this claim was properly dismissed. The dismissal of this claim
is AFFIRMED. Complainant is advised to contact an official in the
agency's EEO office if he believes that the instant complaint has been
properly processed.
ORDER
The agency is ORDERED to provide complainant with the opportunity to
submit additional information precisely relating to the matters raised
in his formal complaint that specifically relate to the nature of the
alleged discriminatory incidents; the date(s) of occurrence; and the
agency employees purportedly involved in the discriminatory actions.
Within fifteen (15) calendar days from the date that this decision
becomes final, the agency shall notify complainant that he has fifteen
(15) calendar days from the date of receipt of the agency's notification
in which to provide the agency specific information as identified above.
The agency shall have fifteen (15) calendar days from the date of its
receipt of complainant's response to issue a new final agency decision
or to notify complainant that the agency is processing his claims.
A copy of the notice requesting further information and/or the notice
of processing must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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 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 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 13, 2002
__________________
Date