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.