0120091376
06-30-2009
David L. Mitchell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David L. Mitchell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091376
Agency No. 4G752040708
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 8, 2009, dismissing his 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. Upon review, the Commission finds that complainant's
complaint was improperly dismissed for failure to cooperate.
At the time of the events at issue, complainant was employed as a
City Carrier at the agency's Garland, Texas Post Office. In an EEO
complaint filed on October 11, 2008, complainant alleged that he was
subjected to discrimination on the bases of disability (PTSD, shoulder)
and reprisal for prior protected EEO activity when, on August 1, 2008,
he was given a drug test without his permission, and on August 19, 2008,
he was issued a letter of warning.
The agency accepted the complaint and commenced an investigation.
On November 10, 2008, the investigator sent complainant a request for an
affidavit along with instructions and forms for completing the affidavit.
In its January 8, 2009 final decision, the agency dismissed the complaint,
pursuant to 29 C.F.R. � 1614.107(a)(7), for failure to cooperate,
asserting that complainant failed to return the requested affidavit
despite a written warning in the affidavit packet sent to him that failure
to provide the affidavit could result in the dismissal of his complaint.
EEOC Regulation 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 fifteen 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. Generally, the
Commission has held that an agency should not dismiss a complaint when it
has sufficient information upon 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 as 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 (Dec. 22, 1994).
In his statement submitted on appeal, complainant insists that he
did send the affidavit to the agency in a timely manner. Complainant
explains he spent hours answering all of the questions and accumulating
requested information, and says he timely submitted it to the agency
as requested by mail. In support of this claim, complainant submits on
appeal a copy of the 26 pages that he says he sent to the agency. The
Commission notes that each page is signed November 18, 2008, including
a final page affirming that all information is true and correct.
In the instant case, the evidence of record does not support a finding
the complainant purposely engaged in delay or contumacious conduct.
Complainant convincingly asserts on appeal that he mailed in the
requested affidavit in a timely manner by first class mail, and does not
know why it was not received. We note that there was no requirement or
notice to complainant that he should return the affidavit by certified
mail to ensure proof of mailing. Further complicating matters is that
the affidavit was to be mailed to a contract investigator, not to the
agency's EEO office. While the agency asserts in its dismissal decision
that the affidavit was not received, the record does not contain a sworn
statement from an agency official attesting to this fact. In Ericson
v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993),
the Commission stated that "the agency has the burden of providing
evidence and/or proof to support its final decisions." See also Gens
v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992).
Accordingly, we conclude that the agency's dismissal of this complaint
should be reversed and the complaint is remanded to the agency to continue
the investigation in accordance with the following Order.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108 et seq. In doing so, the agency should include
complainant's November 18, 2008 affidavit, submitted during this appeal,
as part of its investigation of the complaint.
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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
June 30, 2009
__________________
Date
2
0120091376
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091376