01A23691
09-26-2002
Beverly R. Hardy-Moore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Beverly R. Hardy-Moore v. United States Postal Service
01A23691
September 26, 2002
.
Beverly R. Hardy-Moore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23691
Agency No. 4C-190-0020-02
DECISION
Complainant filed an appeal with this Commission from a decision of the
agency pertaining to her 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. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
Believing that she was the victim of discrimination based on race,
complainant contacted the EEO office. Specifically, complainant claimed
that she was discriminated against when:
1. on October 23, 2001, she was taken off her window duties;
2. on November 1, 2001, she was issued a Letter of Warning and a
7-Day Notice of Suspension (Failure to Properly Perform Duties of
Position/Improper Conduct); and
3. on November 30, 2001, she was issued another 7-Day Notice of
Suspension (Failure to Follow Instructions.
On December 20, 2001, complainant filed a formal complaint that addressed
the matters for which she underwent EEO counseling, discussed above.
Following the acceptance of the complaint, the agency issued a final
decision on May 23, 2002, dismissing the complaint for failure to
prosecute. Specifically, the agency determined that two affidavit
requests were mailed to complainant's attorney on March 13, 2002 and
April 4, 2002, informing him that failure to respond within fifteen days
of receipt could result in the dismissal of complainant's complaint,
but that a response was never sent to the agency.
On appeal, complainant submits copies of her Step 1 and 2 grievance
decisions. In response, the agency restates the position it took in
its FAD and requests that the Commission affirm its final decision.
The record indicates that on March 13, 2002, an affidavit request
was mailed via certified mail to complainant's representative for
completion concerning complainant's complaint with the notice that
failure to return it within fifteen (15) calendar days of its receipt
would result in the dismissal of the complaint for failure to cooperate.
The representative' s firm received the request on March 15, 2002, and
he did not respond to the agency's request. On April 4, 2002, a second
request was mailed via certified mail to complainant's representative.
The representative's firm received the second request on April 10, 2002,
and he failed to respond to that request also.
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides that the agency shall
dismiss 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 fifteen days of its receipt or the response does not address
the agency's request. This regulation also provides that instead of
dismissing a complaint for failure to cooperate, the agency may render
an adjudication if sufficient information for that purpose is available.
Upon review of the informal complaint, the EEO Counselor's report, and
the formal complaint, the Commission finds that the record contained
sufficient information to allow adjudication of the subject complaint.
We note that the questions posed in the agency's affidavit requests seek
information already contained in the record. The Commission has held
that as a general rule, an agency should not dismiss a complaint when it
has sufficient information on 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 to permit
adjudication that the Commission has allowed a complaint to be dismissed
for failure to cooperate. See Raz v. U.S. Postal Service, EEOC Request
No. 05890177 (June 14, 1989); Delgado v. U.S. Postal Service, EEOC Request
No. 05900859 (October 25, 1990). Accordingly, the agency's decision to
dismiss complainant's complaint is hereby REVERSED. The complaint is
REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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.
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 (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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 26, 2002
__________________
Date