01A30255
03-05-2003
Cathe A. Grosshandler, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Cathe A. Grosshandler v. United States Postal Service
01A30255
March 5, 2003
.
Cathe A. Grosshandler,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30255
Agency No. 4E-000-0003-02
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 18, 2002, dismissing 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.
In her formal complaint, filed on December 26, 2001, complainant
alleged that she was the victim of unlawful employment discrimination
on the basis of sex when:
(1) on October 22, 2001, she was locked out of her office;
(2) on October 26, 2001, she was told that her job no longer existed
but she was not RIF [Reduction-in-Force] affected; and
(3) on an unspecified date, she was assigned to a Customer Services
Supervisor position.
The agency dismissed the complaint for failure to cooperate.
Specifically, the agency determined that two affidavit requests were
mailed to complainant on February 27, 2002, and June 3, 2002, informing
her that failure to respond within seven days of receipt could result
in the dismissal of her complaint, but that a response was never sent
to the agency.
On appeal, complainant argues that the agency improperly characterized
her numerous phone calls as a failure to cooperate. Complainant further
argues that the agency sent her an affidavit "that had nothing to do
with my complaint." In support of this argument, complainant submits
an affidavit she had received concerning a sexual harassment claim,
unrelated to the matters raised in her complaint. Complainant asserts,
moreover, that she does not know the named agency official identified
in the affidavit as an alleged sexual harasser. Further, complainant
contends that she corresponded with the investigator regarding this
matter; and that the investigator told her that he would send her a
second affidavit and that her complaint would not be dismissed.
In response, the agency requests that the Commission affirm its final
decision.
The record indicates that on February 21, 2002, an affidavit request
was mailed via certified mail to complainant for completion concerning
her complaint with the notice that failure to return it within seven
(7) calendar days of its receipt would result in the dismissal of the
complaint for failure to pursue. Complainant received the request on
February 27, 2002. On May 28, 2002, a second request was mailed via
certified mail to complainant for completion concerning her complaint
with the notice that failure to return it within seven (7) calendar
days of its receipt would result in the dismissal of the complaint for
failure to pursue. While complainant received these requests, she did
not provide an affidavit; however, she did purportedly contact the agency
by telephone regarding the requests.
The regulation set forth at 29 C.F.R. � 1614.107(a)(7) provides for the
dismissal 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. The regulation further provides that,
instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
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 Card
v. United States Postal Service, EEOC Request No. 05970095 (April 23,
1998); Kroeten v. United States Postal Service, EEOC Request No. 05940451
(December 22, 1994).
The Commission finds that the agency's dismissal of the complaint for
failure to cooperate was improper. The record reveals that the first
affidavit complainant received was for a sexual harassment claim, not
related to the matters raised in her complaint. Further, the record
reveals that complainant received the agency's February 21, 2002 and May
28, 2002 letters requesting her to provide an affidavit concerning the
complaint. The letters stated that complainant had to respond within
seven days of receipt and that her failure to do so would result in
the dismissal of her complaint. Initially, we find that the agency's
request was procedurally defective because the agency incorrectly
advised complainant that she had seven days to respond, rather than
the requisite fifteen days. Further, complainant contends that she did
respond via telephone and we find that complainant's actions cannot be
construed as involving delay or contumacious conduct so as to warrant
dismissal pursuant to the above cited regulation.
Though the Commission determines that the instant complaint was improperly
dismissed for failure to cooperate, we nevertheless advise complainant
to cooperate with the agency in the continued processing of her complaint.
Accordingly, the agency's dismissal of complainant's complaint is
REVERSED. The complaint is REMANDED to the agency for further processing
in accordance with the Order below.
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 acknowledgement 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
March 5, 2003
__________________
Date