01991178
03-01-2000
Jacob Nevzoroff, Complainant, v. Donna E. Shalala, Secretary, Department of Health and Human Services, Agency.
Jacob Nevzoroff v. Department of Health and Human Services
01991178
March 1, 2000
Jacob Nevzoroff, )
Complainant, )
)
v. ) Appeal No. 01991178
) Agency No. IHS-066-98
Donna E. Shalala, )
Secretary, )
Department of Health and Human )
Services, )
Agency. )
____________________________________)
DECISION
On November 24, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dated October 21, 1998,
pertaining to his 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 the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1> In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of race (Aleut) and age (53) when he received a letter stating that he
was not hired because he was not Indian.
The agency dismissed the complaint for failure to cooperate because
a request for information was sent to complainant's representative on
June 1, 1998, but neither complainant nor his representative responded.
Further, the agency found that complainant's representative received
the request on June 6, 1998, and the request proposed to dismiss the
complaint if no response was received within fifteen (15) days.
On appeal, complainant argues, through his representative, that the
complaint should not be dismissed for failure to cooperate because
complainant sent a statement to an agency EEO Official on March 10,
1997, long before the request was made. Complainant notes that he was
not selected for a WG-4102-5 Painter Helper position because "there was
a qualified Indian preference candidate," although complainant himself
is Native American. Further, complainant contends that his complaint
was mishandled by the agency, and the counselor refused to meet with
complainant's representative.
The record includes a copy of the undated Counselor's Report. The
Counselor expounded at length on how rude complainant was, apparently
without discussing complainant's claims or interviewing any witnesses.
Further, the report notes that complainant was attempting to file a
formal complaint since the thirty-day counseling time period expired,
but the Counselor "explained to him, at least, [sic] twice that the 30
day [sic] does not begin to run until we meet face-to-face."
The record also includes a letter from complainant, dated March 10, 1997,
noting that complainant realized he was being discriminated against
when he received a letter on January 21, 1997 (dated August 6, 1996),
informing him that he was not selected for the position. The record
contains the June 1, 1998 request-for-information asking complainant to
clarify when the relevant selection was made. The request proposed to
dismiss the complaint if complainant failed to respond within 15 days.
EEOC Regulations allow the dismissal of a complaint in which the agency
requests, in writing, that complainant provide relevant information,
complainant fails to respond to the request within 15 days, and the
request proposes to dismiss the complaint if complainant fails to respond.
See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(7)). The regulations further provide
that, instead of dismissing for failure to cooperate, the complaint may
be adjudicated if sufficient information is available. Id.
Under the circumstances in this case, we find that the agency's
dismissal was improper. The record indicates that complainant's
representative received the request on June 6, 1998. According to the
agency, complainant failed to reply within the requisite time frame.
The Commission finds, however, that the agency failed to show why the
information was necessary for the further processing of the complaint.
The agency has not claimed that the complaint was vague, and the agency
found that there was sufficient information in the record to define the
complaint. Moreover, we note that complainant's March 10, 1997 letter
described the incident of alleged discrimination, referred to the bases on
which he alleged discrimination, and stated the corrective action sought.
Further, it appears that the agency failed to send a copy of the request
to complainant, as required under the regulations.<2> Accordingly,
the agency's dismissal was improper.
Regarding complainant's claim of improper counseling, complainant must be
referred to the agency official responsible for the quality of complaints
processing. See EEOC - Management Directive (MD) 110 (as revised November
9, 1999) 5-25 to 5-26. The agency should earnestly and expeditiously
attempt to resolve complainant's dissatisfaction. Id. Further, the
Commission notes that the 30-day time limit for counseling runs from
the date that complainant initially contacts a counselor and expresses a
wish to proceed with counseling, not from the date that they finally meet
face-to-face. See 64 Fed. Reg. 37,644, 37,656 (199) (to be codified as
29 C.F.R. � 1614.105(d). Complainant also has a right to be accompanied
by his representative at any stage in the processing of his complaint,
including during counseling. See 29 C.F.R. � 1614.605(a). Additionally,
the EEO Counselor is responsible for conducting a timely inquiry into
the matters alleged. See generally EEOC-MD 110 Ch.2.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and the complaint is
REMANDED for further processing
ORDER
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant 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 complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
Additionally, the agency shall obtain a statement from complainant or
his representative regarding the improper processing of his complaint,
shall incorporate it into the investigative file, as well as any other
documentation generated by an investigation/inquiry into the allegations
of improper processing.
A copy of the agency's letter of acknowledgment to complainant and an
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 (K1199)
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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (R1199)
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 WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. 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 (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:
March 1, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2All correspondence should have been mailed to both complainant and the
representative. See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified
as 29 C.F.R. � 1614.605). Further, since complainant's representative
was not an attorney, official filing deadlines must be calculated from
the date complainant receives the documents, not from the date of receipt
by the representative. Id.