Denise O. Bryant, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 14, 2000
01a00323 (E.E.O.C. Apr. 14, 2000)

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.