Earl S. Barber, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 3, 2000
01a03741 (E.E.O.C. Oct. 3, 2000)

01a03741

10-03-2000

Earl S. Barber, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Earl S. Barber v. U.S. Postal Service

01A03741

October 3, 2000

.

Earl S. Barber,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A03741

Agency No. 1-K-206-0060-98

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated April 11, 2000, dismissing his 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 Rehabilitation

Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1> The Commission

accepts the appeal in accordance with 29 C.F.R. � 1614.405.

Complainant contacted an EEO Counselor on February 3, 1998, indicating

that on January 20, 1998, and continuously, he was subjected to

harassment and sexual harassment by his co-workers, with the consent of

management officials. Complainant reported lewd statements concerning

his sexuality; incidents of laughing at him; and �other demeaning

acts.� When his concerns were unresolved, complainant filed a formal

complaint on August 6, 1999, alleging sexual harassment, and harassment

based on sex and disability, alleging remarks about homosexual conduct,

cursing, and implied threats. By letter dated March 15, 2000, the agency

requested that complainant provide additional information describing

the content of what was said to him by co-workers, and when it was said.

The letter provided complainant with notice that if he did not provide

the information within 15 days, it could result in the dismissal of

his complaint.

When complainant did not respond to the request, the agency issued its

decision dismissing the complaint for failure to prosecute.

On appeal, complainant argues that the requested information was already

of record, and that the incidents were well-known to the EEO Counselor

and a named �investigator.� In its response, the agency requests that

the Commission affirm its dismissal for the reasons set forth in the

final decision.

The regulation set forth at 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).

In the instant case, complainant contends that he did not respond to

the request for information because this information was already in the

record, and that the agency needed to do a further investigation. We note

that there is no evidence of delay or �contumacious conduct� on the part

of the complainant. Review of the record reveals that complainant is

alleging co-worker remarks and acts that are demeaning and/or lewd,

implied threats, and cursing. He contends that this alleged harassment

has been occurring on an on-going basis since January 20, 1998, and that

management officials are aware of this conduct, and condone it. We find

that these statements provide sufficient information for the agency to

make a determination whether to accept the complaint for investigation.

Accordingly, we find that the agency's dismissal of complainant's

complaint for failure to cooperate was improper, and we REVERSE

that determination, and REMAND the case to the agency for processing

pursuant to the Order below. Complainant, however, is advised that

the Commission's regulations require that he fully cooperate in the

investigation of his complaint.

ORDER (E0800)

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 (K0800)

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 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 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0800)

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 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

October 3, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On 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 29 C.F.R. � 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.