01985253
09-09-1999
Alex Medrano, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Southeast/Southwest Region), Agency.
Alex Medrano, )
Appellant, )
)
v. ) Appeal No. 01985253
) Agency No. 4G770012498
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Southeast/Southwest Region), )
Agency. )
______________________________)
DECISION
Alex Medrano (hereinafter appellant) filed an appeal with this Commission
from a final decision of the agency concerning 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 � 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
The final agency decision was received by appellant's representative
on May 28, 1998. The appeal was postmarked June 18, 1998. Therefore,
the appeal is timely (see 29 C.F.R. � 1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
On October 1, 1997, appellant initiated contact with the agency's EEO
office. Informal attempts to resolve his concerns were unsuccessful and
on October 27, 1997, appellant filed a formal complaint. The complaint
alleged discrimination on the bases of race (Hispanic), national origin
(Mexican American), disability (hypertension) and reprisal (previous EEO
complaints)<1> when, on September 20, 1997, he was restricted to one hour
of overtime by his supervisor while other carriers were allowed more.
Appellant alleged that this incident made him so upset that he had to
go home due to high blood pressure.
On May 26, 1998, the agency issued a final decision, dismissing
appellant's complaint under 29 C.F.R. � 1614.107(g) for failure to
cooperate. The agency noted that it twice requested information from
appellant by sending him an affidavit for completion, which he received
on February 11, 1998, and again on April 17, 1998. Because appellant
failed to respond to these requests for information pertaining to his
complaint, the agency dismissed his complaint.
On appeal, the appellant explains (through his representative) that he
has been off work for medical reasons and unable to return the affidavit.
He also argues that the affidavit did not cover any new ground and that
the agency has ample evidence to process the charge.
EEOC Regulation 29 C.F.R. � 1614.107(g) provides that an agency shall
dismiss a complaint when 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, 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. United States Postal Service, EEOC Request No. 05940451
(December 22, 1994).
We find that the agency's decision to dismiss appellant's complaint for
failure to cooperate was improper. Specifically, we note that the record
does not contain copies of the agency's letters requesting information,
or evidence of appellant's receipt of this correspondence. Clearly,
it is the burden of the agency to have evidence or proof to support its
final decision. See Marshall v. Department of the Navy, EEOC Request
No. 05910685 (September 6, 1991). Because there is no evidence in the
record regarding the contents of the agency's letters or of appellant's
receipt of the letters, we find that the record does not support the
agency's dismissal of appellant's complaint for failure to cooperate.
We also note that even if the record contained the missing documents
referenced above, the agency would not have established that appellant
engaged in delay or contumacious conduct or that the record is
insufficient to permit adjudication. Commission precedent indicates
a tendency to affirm an agency's decision to dismiss for failure to
cooperate where the appellant does not provide an explanation for his or
her failure to respond to an information request. See Card v. United
States Postal Service, EEOC Request No. 05970095 (April 23, 1998); Jones
v. United States Postal Service, EEOC Request No. 05960483 (July 18,
1997). On appeal, the appellant's representative notes that appellant
has been off work for medical reasons and unable to return the affidavit.
Moreover, the Commission has previously held that an appellant's conduct
does not rise to the level of a clear record of delay or contumacious
conduct if it is credible that appellant felt that the agency had the
answers it required. See Anderson v. United States Postal Service,
EEOC Request No. 05940850 (February 24, 1995). In the instant case,
appellant alleges that the affidavit did not cover any new ground. A
review of the record indicates that the information appellant provided
during counseling and in his formal complaint include the name of the
person charged with discrimination, the date of the alleged discriminatory
event and an explanation of the event. Therefore, even if the agency
had provided the letters requesting information from the appellant and the
receipts indicating when appellant received those letters, its decision to
dismiss appellant's complaint for failure to prosecute would be improper.
Accordingly, the agency decision to dismiss appellant's complaint is
REVERSED. Appellant's complaint is REMANDED to the agency for further
processing in accordance with the ORDER below and applicable regulations.
ORDER
The agency is ORDERED to process appellant's complaint from the point
where processing ceased in accordance with 29 C.F.R. � 1614.108.
The agency shall acknowledge to the appellant that it has received
the remanded complaint 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:
Sept. 9, 1999 DATE
Carlton M. Hadden, Acting Director Office of Federal
Operations
1 The counselor's report lists only race, national origin, and
reprisal as bases of discrimination. However, the Commission has
held that a complainant may amend his complaint at any time, to
add bases without changing the identity of the claim. See Sanchez
v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970); Dragos
v. United States Postal Service, EEOC Request No. 05940563
(January 9, 1995). The report also indicates that appellant
was told that �Hispanic� is not considered a race, but that he
insisted that it is his race.