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

Equal Employment Opportunity CommissionMay 31, 2000
01a01618 (E.E.O.C. May. 31, 2000)

01a01618

05-31-2000

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


Elizabeth L. Ricks, )

Complainant, )

)

v. ) Appeal No. 01A01618

William J. Henderson, ) Agency Nos. 4-J-606-0151-97

Postmaster General, ) 4-J-606-0188-97

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On December 11, 1999, complainant filed a timely appeal with this

Commission from an agency decision received by her on dated October 22,

1999, pertaining to 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 Section 501 of the Rehabilitation Act of 1973,

as amended, 29 U.S.C. � 791 et seq.<1> In her complaint, complainant

alleged that she was subjected to discrimination on the bases of sex

(female), mental disability (not specified), and in retaliation for

prior EEO activity when on January 2, 1997:

Complainant was not allowed to rotate into other clerk positions;

Complainant was having problems with unscheduled absences;

Complainant was not allowed to use the entrance to the bulk mail room

door;

Complainant was harassed at work;

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

four requests for affidavits on June 25, 1997, June 29, 1998, March 4,

1999, and September 1, 1999. The agency stated that complainant failed to

provide information to clarify the issues in her complaint and therefore,

argued that complainant's complaint should be dismissed for failure to

cooperate.

The record reveals that the agency sent complainant and/or her

representative several affidavit requests. The record contains an

affidavit request dated June 25, 1998, with the signature of complainant's

representative on the certified mail receipt card indicating that it was

received on June 27, 1998. Another affidavit request is dated June 29,

1998, but there is no indication that complainant or her representative

received this request. The record contains a third affidavit request

dated March 4, 1999, with a certified receipt card signed by complainant

indicating that the request was received by complainant on March 22, 1999.

Finally, the record contains an affidavit request dated September 1, 1999,

and a certified receipt card with complainant's signature, indicating that

it was received on September 20, 1999. We note that the affidavit request

dated September 1, 1999, informed complainant that her failure to respond

within fifteen (15) calendar days from receipt of the request could

result in the dismissal of her complaint for failure to cooperate.

With regard to the complaint, we find that the agency's October 22, 1999

decision dismissing the claims for failure to cooperate is proper pursuant

to 29 C.F.R. �1614.107(a)(7). The record reveals that as early as October

12, 1997, the agency requested clarification of the issues raised by

complainant. The record shows that the three affidavit requests received

by complainant and/or her representative specifically ask complainant to

identify who denied her rotation in other clerk positions, indicate the

dates she was denied entrance at the bulk mail room door and when she was

given unjust absences, and clarify her harassment claim. In addition,

the affidavit request dated September 1, 1999, informed complainant that

failure to respond within fifteen (15) calendar days from receipt of

the request could result in the dismissal of her complaint for failure

to cooperate. Complainant failed to clarify the complaint despite the

agency's repeated request for clarification. Without such clarification,

the claims are insufficiently precise to permit further processing.

Accordingly, the agency's decision dismissing the complaint was proper

and is AFFIRMED.

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 (S0400)

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:

May 31, 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.