01a00323
04-14-2000
Denise O. Bryant, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Denise O. Bryant, )
Complainant, )
)
v. ) Appeal No. 01A00323
) Agency No. 1K201003099
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On October 14, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by her on
September 14, 1999, pertaining to her 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
Pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405), the Commission accepts the complainant's appeal from
the agency's final decision in the above-entitled matter.
The EEO Counselor report reflects, that complainant initiated contact
with an EEO Counselor on December 23, 1998. During the counseling period,
complainant stated that:
Effective October 6, 1998, complainant's position was abolished;
On October 9, 1999, complainant was informed that she could no longer
work over time as a distribution clerk;
On October 14, 1998, complainant's supervisor told her she made him
uncomfortable sitting across from him;
Complainant was informed that she was awarded the General Clerk position
at VMF effective October 24, 1998, but she was not provided any paper
work concerning the job; and
From October 1, 1998, complainant was not assigned any work to
accomplish.
Counseling failed, and on March 25, 1999, complainant filed a formal
complaint claiming that she was the victim of unlawful employment
discrimination of the bases of her gender (female), age (forty and over)
and reprisal (prior EEO activity). The formal complaint was comprised
of the following claims:
Effective October 6, 1998, complainant's position was abolished;
On October 9, 1999, complainant was informed that she could no longer
work over time as a distribution clerk;
On October 14, 1998, complainant's supervisor told her she made him
uncomfortable sitting across from him;
Complainant was informed that she was awarded the General Clerk position
at VMF effective October 24, 1998, but she was not provided any paper
work concerning the job;
From October 1, 1998, complainant was not assigned any work to
accomplish; and
Complainant's requests for training, details and upward mobility were
ignored.
On September 14, 1999, the agency issued a final decision dismissing the
present complaint for untimely EEO counselor contact and for failure to
cooperate. With regards to the grounds of untimeliness, the agency found
that claims one through five were untimely. Specifically, the agency
found that complainant's initial EEO Counselor contact, as stated in the
EEO Counselors report, reflects a date of December 23, 1998. Therefore,
this contact is in excess of the forty-five day limitation period with
respect to claims one through five. Also, the agency dismissed claim
six for failure to cooperate. The agency found that the allegation
raised therein was unclear, so they requested additional information
stating that failure to comply could result in a dismissal of that claim.
According to the agency, complainant did not supply sufficient information
as requested.
On appeal, complainant argues that her initial EEO Counselor contact
was timely because she contacted an EEO Counselor on October 23, 1998
as opposed to December 23, 1998 as claimed by the agency. To support
this assertion, complainant submits and reference to a letter from
the EEO counselor assigned to the case which shows that the initial
contact occurred on October 23, 1998. The agency in their brief opposing
complainant's appeal, fails to address this discrepancy and rather asserts
that complainant initial EEO Counselor contact was untimely and she was
aware of the EEO process.
ANALYSIS AND FINDINGS
With respect to claims one through five, which were dismissed by the
agency for untimely counselor contact, the Commission finds that the
agency finding were improper. EEOC Regulation 29 C.F.R. � 1614.105(a)(1)
requires that complaints of discrimination should be brought to the
attention of the Equal Employment Opportunity Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or,
in the case of a personnel action, within forty-five (45) days of the
effective date of the action. The Commission has adopted a "reasonable
suspicion" standard (as opposed to a "supportive facts" standard) to
determine when the forty-five (45) day limitation period is triggered.
See Howard v. Department of the Navy, EEOC Request No. 05970852 (February
11, 1999). Thus, the time limitation is not triggered until a complainant
reasonably suspects discrimination, but before all the facts that support
a charge of discrimination have become apparent.
In addition, where, as here, there is an issue of timeliness, "[a]n
agency always bears the burden of obtaining sufficient information to
support a reasoned determination as to timeliness." Guy, v. Department
of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting
Williams v. Department of Defense, EEOC Request No. 05920506 (August
25, 1992)). In addition, 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). In this case, the record contains a
conflicting statement from the EEO Counselor with regards to when the
initial EEO Counseling occurred. A letter, from the EEO Counselor, to
complainant, states that initial contact was made on October 23, 1998.
This letter corroborates complainant's position that her initial EEO
Counselor contact was timely. However, in contrast, the agency, in
claiming that complainant's initial contact was untimely, relies on the
EEO Counselors report that states initial contact was made on December 23,
1998. Accordingly, the Commission finds, that the agency, in failing to
produce evidence to clarify when complainant made initial contact with an
EEO Counselor, failed to supply sufficient evidence to support its final
decision. Therefore, the Commission finds agency's decision dismissing
claims one through five for untimely counselor contact was improper.
As a final matter, the Commission also finds that the agency improperly
dismissed claim six for failure to cooperate. 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 record indicates that on July 19, 1999,
complainant received a memorandum from the agency requesting that she
furnish an affidavit, and indicating that failure to do so within 15 days
would result in dismissal of her complaint. According to the agency,
complainant failed supply the information requested by the agency in
the memorandum, and therefore, her complaint should be dismissed for
failure to cooperate. We note, that complainant's response, addressed
the incident of alleged discrimination, with reference to the responsible
agency official by name and the bases on which she alleged discrimination.
Moreover, the Commission notes, that the agency found that there was
sufficient information in the record to be able to define the complaint
and accept it for investigation.
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). Therefore, under the circumstances, the Commission
finds that the agency's dismissal of complainant's complaint for failure
to cooperate was improper.
CONCLUSION
For the reasons set forth herein, the Commission hereby REVERSES
the agency's final decision dismissing claims one through five for
untimely EEO Counselor contact and claim six for failure to cooperate.
Accordingly, the instant complaint is REMANDED to the agency for further
processing in accordance with this decision and applicable regulations.
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 an
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:
April 14, 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 Assistant1On 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.