U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Zonia C.,1 Complainant, v. Eric K. Fanning, Secretary, Department of the Army, Agency. Appeal No. 0120170268 Agency No. ARCMA16JAN00395 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 28, 2016, dismissing a formal complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 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. BACKGROUND During the period at issue, Complainant worked as a Lead Security Guard at the Agency's Security Law Enforcement Division, Pueblo Army Chemical Depot in Pueblo, Colorado. On May 3, 2016, Complainant filed the instant formal complaint. Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of sex and age. The Agency framed Complainant's claim in the following fashion: on 7 October 2015, when the Chief of Security, subjected her to a hostile work environment after explaining issues related to menopause from 2 December 2015 - 29 February 2016. In its September 28, 2016 final decision, the Agency dismissed the formal complaint for failure to cooperate, pursuant to 29 C.F.R. § 1614.107(a)(7). Specifically, the Agency determined the EEO Director sent a letter dated August 12, 2016 to Complainant, informing her that failure to clarify her claims within fifteen (15) days of receipt could result in the dismissal of the claims, but that a response was never sent to the Agency. Further, the Agency noted that on September 7, 2016, the EEO Manager sent an email to Complainant, requesting clarification regarding her claims and the identity of her representative. In September 8, 2016 response, Complainant stated that she had sent her formal complaint and her representative's name on August 31, 2016, and would re-send the information again but she never did. Moreover, the Agency noted that on September 9, 2016, the EEO Manager sent Complainant another email requesting information with regard to her claims and representative, but that a response was never sent to the Agency. The instant appeal followed. ANALYSIS AND FINDINGS An Agency should not dismiss a formal complaint when it has sufficient information upon which to base an adjudication. See Ross v. United States Postal Service, EEOC Request No. 05900693 (August 17, 1990); Brinson v. United States Postal Service, EEOC Request No. 05900193 (April 12, 1990). It is only in cases where the Complainant has engaged in delay or contumacious conduct and the record is insufficient or permit adjudication that the Commission has allowed a complaint to be dismissed for failure to cooperate. See Card v. United States Postal Service, EEOC Request No. 05970095 (April 23, 1998); Kroten v. United States Postal Service, EEOC Request No. 05940451 (December 22, 1994). The record contains no evidence that Complainant engaged in delay or contumacious conduct in regard to the processing of the instant complaint. A review of the instant formal complaint and the EEO Counselor's Report indicates that Complainant provided sufficient information to the EEO Counselor about her allegations of discrimination. Specifically, Complainant alleged that she was subjected to harassment and a hostile work environment by the Chief when he removed her from the Personnel Reliability Program (PRP) and requested her to turn in her weapon until completion of a physical examination because she was undergoing treatment for menopause; refused to return her weapon and return her to regular duty with pay and opportunity to work overtime because she had been approved for Family Medical and Leave Act leave for her menopause; issued a restriction stating that she was flagged for a period not to exceed 30 days and not able to perform any duties as a security guard under the PRP; and would not release her to perform unrestricted duties. The record further reflects the reasons Complainant felt that she was discriminated against and contains specific information regarding the discriminatory actions, the name of the alleged discriminatory official, and the corrective action sought. Therefore, we find that the Agency should have completed its investigation of the instant formal complaint and allowed for a decision on the merits rather than dismissing the formal complaint for failure to cooperate. Complainant, however, is advised to cooperate in the further processing of these claims, or face possible future dismissal for failure to cooperate, if she does not do so. The Agency final decision dismissing the formal complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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. A copy of the Agency's letter of acknowledgment to Complainant 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 (K0610) 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 77960, Washington, DC 20013. 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 (M0610) 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), at 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 77960, Washington, DC 20013. 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 (R0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations January 4, 2017 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120170268 5 0120170268