Elizabeth L. Ricks, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 16, 2000
01a01619 (E.E.O.C. May. 16, 2000)

01a01619

05-16-2000

Elizabeth L. Ricks, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Elizabeth L. Ricks, )

Complainant, )

)

v. ) Appeal No. 01A01619

William J. Henderson, ) Agency Nos. 4-J-606-1203-94

Postmaster General, ) 4-J-606-1203-95

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated October 22, 1999 dismissing her 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

Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29

U.S.C. � 621 et seq.<1> In her complaint, complainant alleged that she

was subjected to discrimination on the bases of age (D.O.B. 3/3/51) and

in reprisal for prior EEO activity when between April 26 through July 4,

1994:

Complainant was limited to work four hours per day;

Complainant was forced to work outside her medical restrictions;

Complainant was issued a letter of warning; and

Complainant was denied eight hours of holiday pay.

The agency dismissed complainant's complaint pursuant to the regulation

set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and

hereinafter referred to as 29 C.F.R. � 1614.107(a)(7)), for failure

to cooperate. Specifically, the agency stated that it sent complainant

three requests to clarify the issues in her complaint by letters dated

October 28, 1997, September 1, 1999, and September 15, 1999. The agency

stated that since complainant failed to respond to these requests,

her complaint should be dismissed for failure to prosecute.

The record shows that the agency sent complainant a request for an

affidavit on October 28, 1997, which was received by complainant on

November 10, 1997. A second affidavit request was sent to complainant on

September 1, 1999, and signed for by complainant on September 20, 1999.

A third affidavit request was sent to complainant on September 15, 1999,

and signed for by complainant on September 20, 1999. The third affidavit

request notified complainant that if she failed to respond within fifteen

(15) days from receipt of the request, her complaint may be dismissed

for failure to cooperate. The record contains a copy of the agency's

affidavit questions, which included information pertaining to: the

dates of the alleged incidents; the name of the responsible officials;

information concerning grievances complainant filed on these matters;

and information concerning complainant's prior EEO activity.

On appeal, complainant states that on November 24, 1997, she and her

representative completed the affidavit request and she claims that

she submitted the affidavit to the EEO Counselor in person on November

25, 1997. Complainant attached a copy of her affidavit dated November

24, 1997. Complainant states that a few weeks after she submitted the

affidavit, she was asked by the EEO Counselor to redo the affidavit based

on her failure to write in complete sentences. Complainant claims that

her complaint should not be dismissed since she submitted the affidavit

in November 1997, and she argues that she should not have to submit

another affidavit.

EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides that the agency

shall dismiss 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. Instead of dismissing for failure to cooperate,

the complaint may be adjudicated if sufficient information for that

purpose is available.

By its language, 29 C.F.R. � 1614.107(a)(7) applies only to requests

for relevant information. The Commission, has held, as a general rule,

that an agency should not dismiss a complaint where it has sufficient

information on which to base an adjudication. See Ross v. USPS, EEOC

Request No. 05900693 (August 17, 1990). In addition, we have held that an

agency's decision to invoke the provisions of 29 C.F.R. �1614.107(a)(7)

should be made by the agency only when there is a clear record of delay

or contumacious conduct by the complainant. Connally v. Papachristid

Shipping Ltd., et al., 504 F.2d 917 (5th Cir. 1974).

In the present case, we find the agency's dismissal of complainant's

complaint for failure to cooperate was improper. First, we find that

complainant did submit an affidavit following the agency's request on

October 28, 1997. In addition, we find that this response, as well as

the information provided by complainant in her formal complaint, request

for pre-counseling, and in the EEO Counselor's report provide sufficient

information for the agency to process complainant's claim. We note that

complainant has clearly identified that she is claiming discrimination

based on age and in reprisal for prior EEO activity. In addition,

complainant has identified the dates of each of the alleged incidents

of discrimination, the officials she believes to be responsible, and

similarly situated employees who she claims were afforded the opportunity

to work longer hours. Complainant also identifies her prior EEO activity.

Therefore, we find that the agency erred by dismissing complainant's

complaint for failure to prosecute.

Accordingly, the Commission REVERSES the agency's dismissal of

complainant's complaint and REMANDS the complaint for processing in

accordance with the Order below.

ORDER (E0400)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 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 (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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:

May 16, 2000

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the 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 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as amended,

may also be found at the Commission's website at www.eeoc.gov.