0120103568
01-25-2011
Dennis P. Panich, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Western Area), Agency.
Dennis P. Panich,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120103568
Agency No. 4E-890-0045-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 6, 2010, dismissing his formal 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On March 22, 2010, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On May 6, 2010, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected him to discrimination on the bases of race (Caucasian), color (white), and age (40) when:
1. From April 26, 2008 through October 20, 2009, Complainant was harassed with threats of removal and/or demotion; he was forced to operate with a reduced staff; he was subjected to unwarranted criticism of his station operations; he was given a propose training assignment and unrealistic goals.
2. From October 21, 2009 to February 5, 2010, the Complainant was out on sick leave and believes this was the reason he was not given a merit performance payment for FY 2009, and
3. On February 5, 2010, Complainant did not receive a merit performance payment in his paycheck.
The Agency issued a partial acceptance and partial dismissal on June 1, 2010. The Agency dismissed claim (1) on the grounds of untimely EEO Counselor contact. However, the Agency accepted for investigation claims (2) and (3).
The Agency began its investigation regarding claims (2) and (3). On June 14, 2010, Complainant and his representative were sent an affidavit package by the EEO Contract Investigator. The affidavit request contained notification that Complainant's failure to return the affidavit within fifteen days of its receipt might result in his formal complaint being dismissed. Complainant did not return the requested affidavit.
On August 6, 2010, the Agency issued a decision. Therein, the Agency dismissed complainant's complaint in its entirety for failure to cooperate, citing 29 C.F.R. � 1614.107(a)(7). The Agency found that Complainant did not return his affidavit as requested in the June 14, 2010 letter.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that he contacted by telephone a named EEO official and sent him a fax addressing his disagreement with the partial dismissal, and informing of his change of address. Complainant also noted, inter alia, his dissatisfaction concerning his lack of direct communication with the EEO contract investigator.
The Agency requests that the Commission affirm its final action.
ANALYSIS AND FINDINGS
Claim (1)
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.
In its June 1, 2010 partial dismissal, the Agency dismissed claim (1) on the grounds of untimely EEO Counselor contact. The Agency properly dismissed claim (1) on these grounds. The record reflects that the alleged discriminatory events occurred from April 26, 2008 through October 20, 2009, but that Complainant did not initiate EEO Counselor contact until March 22, 2010, which was beyond the forty-five (45) day limitation period. We note that Complainant, on appeal, did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c). Therefore, the Agency's partial dismissal of claim (1) on the grounds of untimely EEO Counselor contact was proper.
Because we determined that the Agency properly dismissed claim (1) for the reason stated herein, we will not address alternative dismissal grounds.
Claims (2) and (3)
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 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.
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).
The record indicates that on June 15, 2010, Complainant received a letter from the Agency requesting that he furnish an affidavit, and indicating that failure to do so within fifteen days of its receipt would result in dismissal of his claims. According to the Agency, Complainant did not provide his affidavit within the requisite time frame, and therefore, his claims should be dismissed for failure to cooperate. We note, however, that the Agency failed to show why Complainant's affidavit was necessary for the further processing of the complaint. The Agency has not claimed that the claims were vague, and the Agency found that there was sufficient information in the record to be able to define the claims and accept them for investigation. We note that Complainant's formal complaint, along with the EEO Counselor's Report provided a detailed description of his claims, the other persons involved in the discriminatory incidents, and the corrective action sought. Moreover, the record reflects that the contract 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. While the record reflects that Complainant did not return the requested affidavit, the record does not support a finding that Complainant's actions can be construed as contumacious conduct. Much of the information necessary to adjudicate the complaint and sought by the affidavit is available in the report of the EEO Counselor, the report of investigation and in the complaint itself. Therefore, we find that the Agency's dismissal of Complainant's complaint for failure to cooperate was improper.
However, the Commission nevertheless advises Complainant to cooperate in the further processing of these claims, or face possible future dismissal of them for failure to do so.
CONCLUSION
The Agency's dismissal of claim (1) is AFFIRMED. The Agency's dismissal of claims (2) and (3) is REVERSED. Claims (2) and (3) are REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to resume processing of claims (2) and (3) from the point where processing ceased. The Agency shall acknowledge to complainant that it has reinstated and resumed processing of claims (2) and (3).
A copy of the Agency letter of acknowledgement must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 (M0610)
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), at 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 (T0408)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the agency issues its final decision on your complaint. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 25, 2011
__________________
Date
2
0120103568
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103568