0120091878
06-09-2009
Donald C. Wilson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donald C. Wilson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091878
Agency No. 4H327012608
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 10, 2009, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. Upon review, the Commission finds that complainant's
complaint was improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(7)
for failure to submit a response to a request for information.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race/national origin (Hispanic) and age
(54) when he was issued a notice of removal on June 24, 2008.
The agency commenced an investigation on the complaint and, on November
12, 2008, sent complainant a request for an affidavit along with
instructions and forms for completing the affidavit. In its final
decision, the agency dismissed the complaint pursuant to 29 C.F.R. �
1614.107(a)(7) for failure to cooperate, arguing that complainant
failed to return the requested affidavit despite a written warning in
the affidavit packet sent to him that failure to provide the affidavit
could result in the dismissal of her complaint.
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 fifteen 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. Generally, the
Commission has held that an agency should not dismiss a complaint when it
has sufficient information upon 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 as 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 (Dec. 22, 1994).
In the instant case, we find that there is insufficient evidence to
support a conclusion that he purposely engaged in delay or contumacious
conduct. Instead, we find that there was sufficient information in the
record to have permitted the agency to have continued the investigation
(by collecting evidence from management witnesses) without complainant's
affidavit to permit an adjudication on the merits. A review of the record
indicates that complainant spoke with the agency's dispute resolution
specialist assigned to his case and provided extensive information as
detailed in the Dispute Resolution Specialist's Inquiry report (EEO
counselor's report) including a four page hand written statement.
The information provided on complainant's claims was sufficient to
identify the specific management actions he is concerned with, the
relevant timeframes and the responsible management officials. This
is sufficient information to permit management witnesses to respond to
complainant's allegations. See Hearl v. United States Postal Service, EEOC
Appeal No. 0120082505 (July 28, 2008). Whether or not these statements
by complainant provide sufficient evidence to support his claim of
discrimination can be addressed in an adjudication of the merits of his
complaint. In addition, the Commission notes that on appeal complainant
submitted a copy of an arbitration decision which found in his favor.
Accordingly, we conclude that the agency should have completed its
investigation of the complaint without complainant's affidavit and
allowed for an adjudication on the merits rather than dismissing the
complaint. The complaint is hereby remanded to the agency for further
processing in accordance with this decision and the Order below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with 29
C.F.R. � 1614.108 et seq. 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.
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 (S0408)
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. 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 (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
June 9, 2009
__________________
Date
2
0120091878
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120091878