01a51017
02-23-2005
Elizabeth C. Mellies, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area) Agency.
Elizabeth C. Mellies v. United States Postal Service
01A51017
February 23, 2005
.
Elizabeth C. Mellies,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area)
Agency.
Appeal No. 01A51017
Agency No. 4H-330-0149-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 30, 2004, dismissing her 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. In her
complaint, complainant alleged that she was subjected to discrimination on
the basis of sex (female) when �prior to March 2004 and on a continuing
basis,� the Postmaster gave male employees training opportunities and
other benefits and privileges of employment which he did not give women
employees..
The agency dismissed the claim on two grounds. First, the agency
concluded that complainant had failed to respond various requests for
information regarding her claim and thus had failed to cooperate in the
processing of her complaint. Second, the agency determined that even
with the limited information that had been provided, the complaint fails
because she contacted an EEO Counselor too late. Complainant alleged
that the Postmaster improperly announced her Associate Supervisor Program
exam results to her co-workers, but she failed to indicate the date
on which this purported improper act took place. She merely states
that it happened in January 2004. The agency concluded that even if
we assume that the act took place on January 31, 2004, the complaint
is still untimely because she contacted an EEO Counselor on March 19,
2004 � forty-eight days after January 31st. As EEOC regulations state
that complainant must initiate contact with an EEO Counselor within
forty-five days of the alleged discriminatory incident, the agency
alternatively dismissed complainant's complaint as untimely.
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) requires an agency to dismiss
a complaint or a portion of a complaint for failure to cooperate, or
alternatively, to adjudicate the complaint if sufficient information for
that purpose is available. The Commission, however, has held that the
regulation is applicable only in cases where there is a clear record of
delay or contumacious conduct by the complainant. See Laity v. Dep't of
Veterans Affairs, EEOC Appeal No. 01964013 (Aug. 16, 2001); Card v. United
States Postal Serv., EEOC Request No. 05970095 (Apr. 23, 1998); Anderson
v. United States Postal Serv., EEOC Request No. 05940850 (Feb. 24, 1995).
Here, the record shows that complainant made no effort to cooperate with
the agency's requests for specific information about her claim. On June
15, 2004, the EEO Dispute Resolution Specialist sent, via certified mail
(delivery of which complainant acknowledged), a letter asking complainant
to provide the date of the alleged discriminatory incident so as to
process properly the complaint. That letter explained that complainant
must respond to the request within fifteen days, and that failure to
do so may result in a dismissal of the complaint. Complainant never
responded. On July 23, 2004, after complainant filed her complaint,
the EEO Compliance and Appeals Manager sent complainant another letter
with a certificate of service again asking for specificity as to the
training opportunities that were alleged to have been denied, and the
benefits and privileges of employment alleged to have been provided
predominately to male employees. Again, complainant never responded.
The EEO manager sent a third letter to complainant on September 10,
2004, as a �final opportunity ... to provide the information� and again
warning her that the complaint would be dismissed if the information
is not provided. Complainant again failed to respond. Based on these
facts, we conclude that complainant failed to cooperate with the agency's
efforts to process her complaint. We also conclude that there is not
sufficient information for adjudication upon the merits. As such,
the dismissal on these grounds was proper.
The Commission finds that 29 C.F.R. � 1614.107(a)(7) is sufficient to
dismiss the complaint and elects not to analyze the agency's alternative
ground for dismissal. The Commission finds the agency's rational and
conclusion in this regard to be proper and in accordance with established
Commission precedent. Accordingly, the Commission AFFIRMS the agency's
decision dismissing the complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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 (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
February 23, 2005
__________________
Date