Cynthia A. Guiles, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Area), Agency.

Equal Employment Opportunity CommissionMar 20, 2000
01992820 (E.E.O.C. Mar. 20, 2000)

01992820

03-20-2000

Cynthia A. Guiles, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W. Area), Agency.


Cynthia A. Guiles, )

Complainant, )

) Appeal No. 01992820

v. ) Agency No. 4-G-770-0831-98

)

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(S.E./S.W. Area), )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791 et seq.<1> <2> The appeal is accepted pursuant to

64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. �

1614.405). Complainant claims that she was discriminated against on

the basis of her physical disability (back injury), when her light duty

work assignment in the front office was changed from the front office

to the workroom floor, and older employees who also had light duty work

assignments were assigned to the front office.

The record reveals that during the relevant time, complainant was

employed as a Letter Carrier at the agency's North Shepard Station,

Houston, Texas facility.

Believing she was a victim of discrimination, complainant sought EEO

counseling and, subsequently, filed a formal complaint on September

28, 1998. At the conclusion of the investigation, the agency issued

a final decision, dismissing complainant's complaint. The agency

dismissed complainant's complaint on the grounds that complainant failed

to cooperate in the administrative investigation. Specifically, the

agency claimed that it mailed to complainant an affidavit concerning

information on her complaint, to complete via certified mail on December

8, 1998. The agency stated that complainant received the request on

December 8, 1998, and did not respond to the request. The agency claimed

that it mailed a second request on December 29, 1998, which complainant

received on December 31, 1998, and again complainant failed to respond to

the request. Therefore, the agency found that complainant's complaint

should be dismissed on the grounds that complainant failed to cooperate

with the agency.

Following the agency's final decision, complainant filed the present

appeal. On appeal, complainant denies the agency's claim, and contends

that the agency erred when it dismissed her appeal based on its reason

that complainant failed to pursue her claim, or failed to cooperate with

the agency regarding her complaint. Specifically, complainant claims

that the information that the agency requested in the cited affidavit

has already been supplied to the agency several times. Furthermore,

complainant states that the agency has sufficient information to

investigate her complaint. Additionally, complainant has requested a

hearing.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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.

Under the circumstances in this case, we find that the agency's dismissal

was improper. The agency notes in its final decision that, by letters

dated December 8, and 29, 1998, it requested that complainant provide

information relating to her complaint. The record, however, contains

no copy of a certified mail return receipt or any other material

establishing that complainant received the agency's letters dated

December 8, and 29, 1998. Furthermore, the record does not contain

either of the notices purportedly sent to complainant. Clearly, it is

the burden of the agency to have evidence or proof to support its final

decision. Marshall v. Department of the Navy, EEOC Request No. 05910585

(September 6, 1991). Absent evidence that complainant was on notice

to provide certain information or face the possible dismissal of her

complaint, we find that the record does not support the agency's dismissal

of complainant's complaint for failure to prosecute.

Furthermore, according to the agency, complainant failed to furnish the

requested affidavit. We

note, however, that the agency failed to show why complainant's affidavit

was necessary for the further processing of the complaint. The agency

has not claimed that the complaint was vague, and the agency found

that there was insufficient information in the record to be able to

define the complaint and accept it for investigation. We note that

complainant's complaint addressed the incident of alleged discrimination,

with reference to the responsible agency official by name, the basis on

which she alleged discrimination, and the corrective action sought.

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). There is no evidence of contumacious conduct in

the present case. Therefore, we find that the agency's dismissal of

complainant's complaint for failure to cooperate was improper.

Accordingly, the agency's decision to dismiss complainant's complaint

was improper, and is hereby REVERSED. The complaint is REMANDED to the

agency for further processing in accordance with this decision and the

Order below.

ORDER (E1199)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 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 (K1199)

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 64 Fed. Reg. 37,644,

37,659-60 (1999) (to be codified and hereinafter referred to as 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)(Supp. V 1993). If the

complainant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated. See

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (R1199)

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:

March 20, 2000

DATE Carlton M. Hadden,

Acting Director

Office of Federal

Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

DATE Equal Employment

Assistant

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment. Since that time,

the ADA regulations set out at 29 C.F.R. Part 1630 apply to complaints

of disability discrimination. These regulations can be found on EEOC's

website: www.eeoc.gov.