01a02656
12-12-2000
Edward Arevalo, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Great Lakes Area) Agency.
Edward Arevalo v. United States Postal Service
01A02656
December 12, 2000
.
Edward Arevalo,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Great Lakes Area)
Agency.
Appeal No. 01A02656
Agency No. 4J606022697
Hearing No. 210-99-6522X
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning 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.<1> The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant alleges that he was discriminated
against on the basis of his national origin (Hispanic) when on May 22,
1997, the agency issued him a notice of suspension. For the following
reasons, the Commission VACATES and REMANDS the agency's final decision.
Believing he was a victim of discrimination, complainant sought EEO
counseling and, subsequently, filed a formal complaint on May 30, 1997.
At the conclusion of the investigation, complainant was provided a
copy of the investigative file and informed of his right to request
a hearing before an EEOC Administrative Judge (AJ) or alternatively,
to receive a final decision by the agency. Complainant requested a
hearing before an AJ. Finding that complainant failed to participate in
a telephonic prehearing conference, failed to file any of the required
prehearing submissions and failed to respond to the prehearing orders,
the AJ canceled the hearing and remanded the complaint pursuant to 29
CFR � 1614.109(f).
Following the AJ's decision to remand complainant's complaint, the
agency issued a final decision (FAD) on January 19, 2000, dismissing
complainant's complaint for failure to participate in the prehearing
conference. Specifically, the agency determined that because complainant
failed to participate in the pre-hearing process, his complaint should
properly be dismissed for failure to cooperate.
29 C.F.R. � 1614.107(a)(7) provides for the dismissal of a complaint
where the agency has provided complainant with a written request to
provide relevant information or otherwise proceed with the complaint,
and complainant has failed to respond to the request within 15 days of
its receipt or 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.
Under the circumstances in this case, we find that the agency's dismissal
was improper. The record indicates that on May 11, 1997, complainant's
complaint was accepted for investigation and on May 11, 1999, the agency
completed its investigation. The record further indicates that the AJ
assigned to hear complainant's complaint remanded the matter to the agency
because complainant failed to participate in the pre-hearing process.
Following the AJ's decision to remand the matter, the agency in turn,
dismissed complainant's complaint for failure to cooperate. We note,
however, that the agency failed to show why it could not issue a final
decision regarding complainant's complaint. The agency has not claimed
that the complaint was vague, and 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 incident
of alleged discrimination, with reference to the responsible agency
officials by name, the basis on which he alleged discrimination, and
the corrective action sought.
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. USPS, EEOC Request No. 05900693
(August 17, 1990); Brinson v. USPS, EEOC Request No. 05900193 (April
12, 1990). It is only in cases where 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. USPS, EEOC Request No. 05970095
(April 23, 1998); Kroeten v. USPS, EEOC Request No. 05940451 (December
22, 1994). Therefore, under the circumstances, we find that the agency's
dismissal of complainant's complaint for failure
to cooperate was improper. Accordingly, the agency's decision to dismiss
complainant's complaint is hereby REVERSED. The complaint is REMANDED
to the agency for further processing in accordance with this decision
and the Order below.
ORDER
Within sixty (60) calendar days from the date this decision becomes final,
the agency shall issue a final decision in accordance with 29 C.F.R. �
1614.110. A copy of the final decision must be sent to the Compliance
Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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
complainant. If the agency does not comply with the Commission's order,
complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). 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,
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 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 (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
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
December 12, 2000
Date
1 On 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. Part 1614 in
deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.