01982914_r
03-30-1999
Courtney R. Johnson, Appellant, v. Joseph D. Duffey, Director, United States Information Agency, Agency.
Courtney R. Johnson, )
Appellant, )
)
v. ) Appeal No. 01982914
) Agency Nos. OCR-97-26
Joseph D. Duffey, ) OCR-96-26
Director, )
United States Information )
Agency, )
Agency. )
______________________________)
DECISION
On March 4, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her attorney on February 9,
1998, pertaining to her 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., and �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq.
After initiating counseling on May 22, 1996, appellant filed a formal
complaint on July 1, 1996, Agency Number 96-26. By letter dated December
20, 1996, the agency accepted two allegations from the complaint.
On March 6, 1997, appellant again contacted a counselor, and filed
a second formal complaint on March 29, 1997, Agency Number 97-26.
By letter dated June 25, 1997, the agency accepted one allegation
from Agency Number 97-26. Appellant requested that both complaints be
investigated together, but the record does not include notification to
appellant of joint processing of complaints 96-26 and 97-26.
In Agency Number 96-26, appellant alleged that she was subjected to
discrimination on the basis of reprisal for prior EEO activity when:
On May 29, 1996, appellant was ordered by her Foreign Service
Career Counselor to return to I/T for duty in appellant's current
over-complement status without the benefit of being officially assigned
to I/T; and
On May 17, 1996, appellant was told that her over-complement detail to D/C
was terminated without the benefit of an appropriate onward assignment.
In Agency Number 97-26, appellant alleged that she was subjected to
discrimination on the bases of mental handicap and in reprisal for prior
EEO activity when:
On November 18, 1997, appellant was separated from the Foreign Service
Corps of the United States Information Agency.
In a FAD dated February 4, 1998, the agency dismissed both complaints
pursuant to EEOC Regulation 29 C.F.R. �1614.107(g), for failure to
cooperate with an agency investigation. Specifically, the agency
found that appellant failed to respond to a letter, dated July 31,
1997, that advised appellant that she had fifteen (15) days to meet with
investigators, or have her complaint dismissed for failure to cooperate.
Further, the agency found that appellant was scheduled to meet with
investigators on several occasions, but was unprepared or otherwise
unable to give an affidavit.
On appeal, appellant states that she does not wish to pursue allegations
(1) and (2) and, therefore, is only appealing the dismissal of
allegation (3). Appellant asserts that allegation (3) was improperly
dismissed because the agency failed to comply with the requirements of 29
C.F.R. �1614.107(g), namely, that the agency never sent a written request
for information providing fifteen (15) days to respond, or included with
the request a notice of proposed dismissal of the complaint. Appellant
concedes that the written request, dated July 31, 1996, complies with
29 C.F.R. �1614.107(g), but argues that it only refers to allegations
(1) and (2).
EEOC Regulation 29 C.F.R. �1614.107(g) provides that an agency shall
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, and the complainant
has failed to respond to the request within 15 days of its receipt
or the complainant's response does not address the agency's request,
provided that the request included a notice of the proposed dismissal.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
The Commission has stated that "it is only in cases where the
complainant has engaged in delay or contumacious conduct and the
record is insufficient to permit adjudication that the Commission has
allowed a complaint to be canceled for failure to prosecute/cooperate."
Kroeten v. U.S. Postal Service, EEOC Request No. 05940451 (December 22,
1994) (citation omitted).
The Commission finds that the agency's decision to dismiss allegation (3)
for failure to cooperate is improper. After a thorough review of the
record, the only letter which satisfies the statutory requirements of
29 C.F.R. �1614.107(g), dated July 31, 1996, refers to allegations (1)
and (2) (Agency Number 96-26). No such letter refers to allegation (3)
(Agency Number 97-26). Further, the Commission finds that appellant was
not put on notice that the complaints were being processed together.
Hence, appellant was not put on notice that allegation (3) could be
dismissed for failure to respond to the July 31, 1996 letter, as required
under EEOC Regulation 29 C.F.R. �1614.107(g).
CONCLUSION
Accordingly, the agency decision to dismiss allegations (1) and (2) is
AFFIRMED, but the agency decision to dismiss allegation (3) is REVERSED.
Allegation (3) is REMANDED for further processing in accordance with
the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation 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 (T0993)
This decision affirms the agency's final decision 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 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.
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 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 (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:
March 30, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations