0120090008
01-22-2009
Dennis J. Drew, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dennis J. Drew,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090008
Agency No. 4G770018908
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 25, 2008, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of race (Caucasian), color (white), sex (male), disability ("deaf, dumb,
and blind"), age (58), and reprisal (prior protected EEO activity) when:
(1) on March 3, 2008 a supervisor called the FMLA (Family Medical Leave
Act) Coordinator to cancel complainant's approved leave, and subsequently
the FMLA Coordinator canceled complainant's FMLA case after six months
rather than the one-year certification that had been approved; (2) on
or about March 2008, complainant was subjected to two pre-disciplinary
meetings, and subsequently, on or about May 17, 2008, he was issued
a Letter of Warning; (3) since May 19, 2008, complainant has been on
Emergency Suspension; (4) on May 17, 2008, he was issued a Notice of
Proposed Removal; and (5) in March 2008, he was harassed when, among other
things, he still had not been scheduled for a route inspection and the
labels were not changed on his expanded case. Following the completion
of the investigation, the agency dismissed complainant's claims for
failing to cooperate in accordance with 29 C.F.R. �1614.107(a)(7).
The undisputed record reveals that on July 1, 2008, the EEO investigator
who was assigned to conduct the investigation forwarded questions
to complainant for the purpose of having him complete an affidavit
(Affidavit Package). Complainant received the Affidavit Package on July
3, 2008.1 Complainant did not respond to the request in the Affidavit
Package or otherwise provide additional information. No additional
efforts were made to contact complainant.
On appeal, complainant asserts that the affidavit questions he received
were unduly burdensome. Specifically, complainant asserts that there were
over 80 questions, not including subparts, and a supplemental affidavit.
Complainant also asserts that many of the questions were incoherent,
overly technical and misstated the information provided in complainant's
informal and formal complaints. Complainant also argues that he was ill
at the time he received the Affidavit Package and provides documentary
evidence to support an illness that lasted approximately two weeks.
Lastly, complainant asserts that the agency had adequate information
to conduct a thorough investigation of his case without the affidavit.
The agency reiterates its contention that complainant failed to cooperate,
and request that the Commission affirm the agency decision.
Under the circumstances in this case, we find that the agency's dismissal
was improper. While the record supports the finding that complainant
received the Affidavit Package and notice of possible dismissal, we find
that the agency failed to show why complainant's affidavit was necessary
for the further processing of the complaint. The agency does not claim
that the complaint is vague. The agency found that there was sufficient
information in the record to be able to define the complaint and accept
it for investigation. Moreover, we note that complainant's complaint,
along with the EEO Counselor's Report, addressed the incidents of alleged
discrimination with reference to the responsible agency official by name,
the bases on which he alleged discrimination, and the corrective action
sought. The record reflects that the EEO investigator had completed
the investigation with the exception of complainant's affidavit, and
had obtained affidavits from the responsible management officials,
and the relevant documents.
The Commission has held that as a general rule, an agency should not
dismiss a complaint when it has sufficient information to adjudicate
on the merits. See Brown, Jr. v. United States Postal Service,
EEOC Appeal No. 0120082926 (September 12, 2008). EEOC Regulation 29
C.F.R. �1614.107(a)(7) provides that instead of dismissing a complaint
for failure to cooperate, the complaint may be adjudicated if sufficient
information for that purposes is available. In the instant matter,
the agency has not shown that sufficient information is not available
to adjudicate the complaint and it appears that such information
is available. Therefore, we find that the agency's dismissal of
complainant's complaint for failure to cooperate was improper.
The agency's dismissal of the complaint is REVERSED and we REMAND the
complaint to the agency for further processing in accordance with this
decision and the Order herein.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with
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 (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
January 22, 2009
Date
1 The Affidavit Package included a notice to complainant that if he
failed to respond to the information requested within 15 days his
complaint may be dismissed for failure to cooperate in accordance with
29 C.F.R. � 1614.107.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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