01973431
03-30-1999
Frank A. Barone, Appellant, v. Carol M. Browner, Administrator, Environmental Protection Agency,) Agency.
Frank A. Barone v. Environmental Protection Agency
01973431
March 30, 1999
Frank A. Barone, )
Appellant, )
)
v. ) Appeal No. 01973431
) Agency No. 96-0041-R2
Carol M. Browner, )
Administrator, )
Environmental Protection Agency,)
Agency. )
________________________________)
DECISION
For the reasons that follow, the Commission sets aside the agency's
February 13, 1997 final decision (FAD), which dismissed appellant's
January 31, 1996 formal EEO complaint for failure to cooperate, pursuant
to 29 C.F.R. �1614.107(g). We find neither evidence nor argument to
persuade us to the contrary.<1>
The Commission does not find that appellant engaged in contumacious
behavior or delay in this matter to warrant dismissal of his
complaint. Kroeten v. U.S. Postal Service, EEOC Request No. 05940451
(December 22, 1994). We find that no investigation was conducted by
the agency by the time this matter came before an EEOC Administrative
Judge (AJ), an omission the agency conceded to the AJ by letter
dated November 25, 1996. The Commission's regulations, set forth at
29 C.F.R. �1614.108(f), provide that the agency shall complete the
investigation within 180 days of the filing of the complaint. We find,
in the present case, that the agency received appellant's complaint on
February 5, 1996.<2> We also find there remains a question as to the
substance of appellant's allegations. Therefore, upon remand, the agency
shall not only investigate appellant's complaint, but shall also clarify
the bases of the alleged discrimination as well as the allegations.
The FAD is VACATED and appellant's complaint REMANDED for further
processing consistent with this decision and applicable regulations.
The parties are advised that this decision is not a decision on the merits
of appellant's complaint. The agency shall comply with the Commission's
ORDER below.
ORDER
The agency is ORDERED to conduct a supplemental investigation, which
shall include the following actions:
1. The agency shall, with the cooperation of appellant and his
representative, identify the bases of alleged discrimination and the
substance of the allegations, including dates when these allegations
purportedly arose, as well as the names, titles and/or positions of
those agency personnel who allegedly discriminated against appellant.
2. Thereafter, the agency shall conduct an investigation, as required
under 29 C.F.R. �1614.108(f), issue a report of investigation, and
request the assignment of an EEOC AJ, unless appellant requests an
immediate final decision.
3. All Ordered actions, including the request for assignment of an EEOC
AJ, shall be concluded within sixty (60) calendar days of the date the
Commission's decision becomes final in this matter.
True copies of the supplemental investigation, the request for assignment
of an EEOC AJ, or immediate final decision, as the case may be, must be
submitted 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. �l6l4.604(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:
March 30, 1999
DATE Ronnie Blumenthal, Director
1Appellant's March 17, 1997 appeal, through his attorney, was timely
filed, the FAD having purportedly been received on February 17, 1997, in
the absence of evidence to the contrary. 29 C.F.R. �1614.402(a).
However, his brief was untimely, having been filed on April 18, 1997.
29 C.F.R. �1614.403(d). The agency's response to appellant's appeal
was also untimely, the complaint file having been received by the
Commission on May 19, 1997, although the agency acknowledged receiving
the Commission's request for the complaint file on March 25, 1997. 29
C.F.R. �1614.403(d). Thus, the Commission will not consider either
party's arguments.
2The filing date of a mailed EEO document is determined by the postmark
date. 29 C.F.R. �1614.604(b). In the present case, in the absence of
a postmark, we have looked to the date of receipt.