01A04443
07-24-2001
Barbara A. Lippo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Barbara A. Lippo v. United States Postal Service
01A04443
July 24, 2001
.
Barbara A. Lippo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 01A04443
Agency No. 4J60000333798
Hearing No. 2109963346
INTRODUCTION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning her 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. The agency decision (FAD) was received by
complainant on May 1, 2000. The appeal was filed on May 3, 2000.
Accordingly, the appeal is timely, and is accepted in accordance with
EEOC Order No. 960, as amended. 29 C.F.R. � 1614.402(a).
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
complaint for failure to prosecute.
BACKGROUND
The record indicates that complainant filed a timely formal complaint
against the agency on August 27, 1998. In her complaint, complainant
alleged unlawful employment discrimination on the basis of sex (female),
age (DOB: May 5, 1943), and reprisal for prior EEO activity. The agency
accepted the complaint and completed its investigation on March 26,
1999. On June 10, 1999, complainant requested a hearing before an
administrative judge. On July 27, 1999, complainant submitted a temporary
withdrawal of her request for a hearing due to the unexpected death of
her representative. On August 9, 1999, the administrative judge awarded
the complainant an extension of 180 days. The complainant was instructed
to re-submit a request for a hearing within that time and informed that
the agency had the right to issue a final decision on the investigative
report or dismiss her complaint for failure to prosecute if she did not.
The complainant did not re-submit her request for a hearing within
180 days. The agency issued its final decision on April 17, 2000,
and dismissed the complaint for failure to prosecute pursuant
to 29 C.F.R. � 1614.107(a)(7).
DECISION
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides that the agency
shall dismiss a complaint or a portion of a complaint where 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 or the
complainant's response does not address the agency's request, 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 complainant requested a temporary withdrawal of her request for a
hearing and was given a 180 day extension. The extension order made
clear that if complainant did not resubmit a request for a hearing,
the complainant would be deemed to have withdrawn her request for a
hearing. The complainant did not resubmit a hearing request within the
time allowed. However, we disagree with the agency's dismissal of the
complaint for failure to prosecute. While complainant's hearing request
was not submitted in a timely manner, the agency has not shown that the
record does not contain sufficient information to permit issuance of a
final agency decision on the merits of the complaint.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper and is REVERSED and the complaint is REMANDED for further
processing in accordance with the Order below.
ORDER
The agency is ordered to issue a final decision pursuant to 29 C.F.R. �
1614.110 on the merits of complainant's complaint based on the evidence
already present in the record. This decision must be issued within 60
calendar days of the date this decision becomes final. A copy of the
decision should be sent to the Compliance Officer as provided below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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 (M0701)
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), 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 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 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 (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 24, 2001
__________________
Date