Daniel Valentine, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 12, 1999
01990169 (E.E.O.C. Aug. 12, 1999)

01990169

08-12-1999

Daniel Valentine, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Daniel Valentine, )

Appellant, )

)

v. ) Appeal No. 01990169

) Agency No. 1-A-072-0025-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On October 8, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on October 6, 1998,

pertaining to his 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. In his formal complaint, dated May 31, 1998,

appellant alleged that he was subjected to discrimination on the bases

of sex (male), religion (Christian), and national origin (Hispanic), but

did not provide specific allegations or occurrences of discrimination.

In the complaint, appellant requested that he �be treated fairly and

given the same privilege as the next person� and requested that his

off-days be moved to Saturday and Sunday.

In its FAD, dated October 2, 1998, the agency dismissed appellant's

complaint pursuant to EEOC Regulation 29 C.F.R. �1614.107(g), for failure

to prosecute. Specifically, the agency found that appellant failed to

respond to the agency's request for information, dated August 4, 1998

and received by appellant August 6, 1998. The request for information

informed appellant that if he failed to respond within fifteen (15)

days, his complaint may be dismissed. Further, the agency found that

without further information, the record contained insufficient evidence

to process appellant's complaint.

Appellant provided no response on appeal.

A review of the record reveals that by letter dated August 4, 1998,

and received by appellant August 6, 1998, the agency requested that

appellant provide information of, inter alia how he was discriminated

against, when it occurred, who were the responsible agency officials,

and how the relief sought would make appellant whole. The letter also

informed appellant that if he failed to respond within fifteen (15)

days, his complaint may be dismissed pursuant to EEOC Regulation 29

C.F.R. �1614.107(g). Further, the record does not contain a response

to the agency's August 4, 1998 letter.

The record also includes appellant's request for counseling, dated

March 3, 1998, to which appellant attached a statement alleging that

ever since appellant filed an EEO complaint on February 10, 1998,

everything appellant submitted to a named supervisor was denied, or at

least questioned. Specifically, the attachment explains, �last week�

appellant requested a temporary change of schedule that was denied.

Appellant asked that he be given Saturdays and Sundays off to attend

religious services. In the Counselor's Report, dated June 9,1998,

appellant's allegation is defined as not being given �Saturday and Sunday

as rest days.� The Counselor's Report also states that appellant �wants

Saturday/ Sunday off,� as a remedy. In the Final Interview/ Notice of

Right to File a Formal Complaint, appellant's allegation is defined as:

�. . .[appellant's] request for schedule change, (unspecified dates)

was refused.�

EEOC Regulation 29 C.F.R. �1614.107(g) provides that an 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 Commission has stated that "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 canceled for failure to prosecute/cooperate."

Kroeten v. United States Postal Service, EEOC Request No. 05940451

(Dec. 22, 1994) (citation omitted).

Although appellant failed to provide key information on his formal

complaint form and failed to respond to the agency's request for

information, the Commission finds that dismissal pursuant to EEOC

Regulation 29 C.F.R. �1614.107(g) is improper. Upon a thorough review

of the record, the Commission finds sufficient evidence with which to

adjudicate appellant's complaint. When asked what relief he sought,

appellant repeatedly requested that his off-days be changed to Saturday

and Sunday, and alleged in his request for counseling, and in counseling

itself, that his supervisor denied his request for a schedule change.

Accordingly, the agency's decision is REVERSED, and the allegation is

REMANDED for further processing.

ORDER (E1092)

The agency is ORDERED to process the remanded allegation in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegation within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

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 appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant 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 (K0595)

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 appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,

the appellant 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. ��1614.408 and 1614.409. 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

appellant files a civil action, the administrative processing of the

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

See 29 C.F.R. �1614.410.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some

jurisdictions have interpreted the Civil Rights Act of 1991 in a manner

suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive this decision. To ensure that your

civil action is considered timely, you are advised to file it WITHIN

THIRTY (30) CALENDAR DAYS from the date that you receive this decision

or to consult an attorney concerning the applicable time period in the

jurisdiction in which your action would be filed. 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 (Z1092)

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:

August 12, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations