Dennis J. Drew, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 22, 2009
0120090008 (E.E.O.C. Jan. 22, 2009)

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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