01993005
11-05-1999
Yvette B. Graham, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Yvette B. Graham, )
Appellant, )
)
v. ) Appeal No. 01993005
)
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
___________________________________)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated February 9, 1999, which the agency issued pursuant
to EEOC Regulation 29 C.F.R. �1614.107(g). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
The issue presented in this appeal is whether the agency properly
dismissed part of the appellant's complaint for failure to cooperate.
For the reasons set forth below, the Commission reverses the partial
dismissal of the appellant's claims.
The appellant filed a formal complaint, dated September 25, 1998, wherein
she alleged that the agency discriminated against her based on her sex,
physical disability and age. The appellant checked boxes and provided
dates for discrimination in assignments, duty hours, harassment, sexual
harassment, reassignment, retirement and hostile working conditions.
The appellant also indicated that as corrective action, she sought
compensation for pain, suffering, and embarrassment. The copy of the
complaint provided to the Commission on appeal contains only one page
which the appellant fully completed as described herein.
On December 14, 1998, the agency wrote the appellant that her complaint
lacked specificity and detail regarding sexual harassment on April 6
and 12, 1998; assignment of duties, reassignment, and duty hours on
June 8, 1998, and retirement on April 18, 1998. The letter instructed
the appellant to state the specific personnel action or events she
believed to be discriminatory, the exact date each occurred, the exact
dates she first learned of the actions or events, and the management
official(s) whom she believed were responsible for the actions or events.
The letter further informed the appellant that she had to supply the
exact information requested within 15 calendar days of receipt of the
letter or the agency might dismiss her complaint.
The appellant responded on December 26, 1998 with a five page type-written
narrative statement describing in detail the actions and circumstances
surrounding the events in which she felt she was being sexually harassed
and subjected to a hostile work environment in order to harass her
into retiring. She also represented that she had provided materials
to both counselors and that each had commented on the thoroughness of
her documentation.
The agency then issued a final agency decision wherein it defined and
accepted four issues for investigation. The decision then dismissed
the retirement issue for appellant's purported failure to cooperate.
As a threshold matter, the Commission finds that the claim that the
agency characterized as the �retirement� issue was, in actuality,
a claim that the supervisor was subjecting the appellant to a hostile
work environment based on her sex, disability, and age, in order to
force her into retiring.
EEOC Regulation 29 C.F.R. �1614.107(g) requires an agency to dismiss
a complaint or a portion of a complaint where the agency has provided
the complainant with a written request to provide relevant information
or otherwise proceed with the complaint, the request included a notice
of the proposed dismissal, and the complainant failed to respond to
the request within 15 days of its receipt or the complainant's response
does not address the agency's request. The regulation further specifies
instead of dismissing for failure to cooperate, the agency may adjudicate
the complaint if sufficient information for that purpose is available.
The Commission has held that this regulation is not applicable where
there is sufficient information in the record to determine whether to
accept the complaint's allegations without any further input from the
appellant. Breese v. Department of the Army, EEOC Request No. 05940800
(May 25, 1995); and Hart v. Department of Veterans Affairs, EEOC Request
No. 05930591 (December 23, 1993). The Commission also has held that the
regulation is applicable only in cases where there is a clear record of
delay or contumacious conduct by the complainant. Anderson v. United
States Postal Service, EEOC Request No. 05940850 (February 24, 1995).
The Commission finds that the appellant cooperated with the agency's
request for information. The appellant provided numerous details
regarding the hostile work environment which she believed her supervisor
was creating in order to force her into retirement. She explained the
April 18, 1998 date on the complaint form as the date the supervisor
contacted the Personnel Office to find out if she had filed the paperwork
for retirement. The Commission also finds that the agency did not need
to know the exact dates for each of the allegedly harassing incidents
because the alleged hostile work environment allegedly had continued into
the 45-day period which preceded the appellant's EEO counselor contact.
For the above stated reasons, the Commission REVERSES the dismissal of
the �retirement� allegation for failure to cooperation and the agency's
implicit dismissal of the appellant's hostile work environment claim.
On REMAND the agency should investigate the appellant's hostile work
environment claim in its entirety, not limiting the investigation to
those incidents accepted by the agency.
ORDER
The agency is ORDERED to process the remanded claim in accordance with 29
C.F.R. �1614.108. The agency shall acknowledge to the appellant that it
has received the remanded claim within thirty (30) calendar days of the
date this decision becomes final. The agency shall issue to appellant
a copy of the investigative file and also shall notify appellant 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 appellant requests a final decision without
a hearing, the agency shall issue a final decision within sixty (60)
days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
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. 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. 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 (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:
November 5, 1999
______________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations