0120121903
10-11-2012
Arquimedes Perez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Arquimedes Perez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120121903
Agency No. 1G-781-0033-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 14, 2012, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Mail Handler at the Agency's San Antonio, Texas Processing and Distribution Center.1
On September 13, 2011, Complainant filed a formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment on the bases of disability and in reprisal for prior EEO activity when:
1. on an unspecified date, his reasonable accommodation request was not handled properly and he was not given requested temporary accommodations;
2. on an unspecified date, he was not put on Administrative Leave, pending an Agency decision;
3. on an unspecified date, he was not given the option of taking a twenty-hour position during the dispute over the terms of his employment;
4. on unspecified dates, he was sent conflicting letters, threatening bid assignment removal and separation;
5. on an unspecified date, he received a letter to report to Tour 1 on May 7, 2011, but was later informed by the District Reasonable Accommodation Committee (DRAC) not to report on May 7, 2011;
6. on March 10, 2011, he was subjected to being requested to (attend) "unneeded meetings;" and
7. beginning December 17, 2011, he was denied union representation.
In its February 14, 2012 final decision, the Agency dismissed the instant formal complaint pursuant to 29 C.F.R. � 1614.107(a)(7) for failure to cooperate. The Agency stated that on December 8, 2011, Complainant was sent an affidavit package by the EEO contract investigator. Complainant confirmed receipt of the package on December 12, 2011. The Agency noted that Complainant did not indicate he was having a problem completing the affidavit and, to date, he failed to return the affidavit. The documents notified Complainant that his completed affidavit had to be returned and postmarked within fifteen days of receipt of the package. Further, Complainant was cautioned that a failure to respond could result in the dismissal of his formal complaint.
ANALYSIS AND FINDINGS
The Commission has held that an Agency should not dismiss a 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 persuasive evidence that Complainant engaged in delay or contumacious conduct in regard to the processing of the instant complaint. Moreover, a review of the instant formal complaint and EEO Counselor's Report indicates that Complainant provided extensive information to the EEO Counselor about his allegations of discrimination. The record reflects the reasons Complainant felt that he was discriminated against and contains specific information regarding the discriminatory actions, the names of the alleged discriminatory officials, and the corrective action sought.
Accordingly, we conclude that the Agency should have completed its investigation of the complaint and allowed for a decision on the merits rather than dismissing the formal complaint for failure to cooperate. The Agency's dismissal is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
However, although we have reversed the Agency's dismissal on the ground set forth above in this particular instance, Complainant is nonetheless advised to cooperate in the continued processing of the formal complaint, or face possible dismissal of the formal complaint if he does not do so.
ORDER
The Agency is ORDERED to resume processing of Complainant's complaint from the point where processing ceased. The Agency shall acknowledge to Complainant that it has reinstated and resumed processing of Complainant's complaint.
A copy of the Agency letter of acknowledgment 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 11, 2012
__________________
Date
1 The record reflects that Complainant was terminated from Agency employment effective July 2, 2011.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120121903
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121903
6
0120121903