01994536_r
06-29-2001
Estate of Rhonda N. Revercomb, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Estate of Rhonda N. Revercomb v. United States Postal Service
01994536
June 29, 2001
.
Estate of Rhonda N. Revercomb,<1>
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994536
Agency No. 4G-752-0550-97
DECISION
Complainant's mother filed a timely appeal with this Commission from a
final agency decision (FAD) dismissing her deceased daughter's 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.
Complainant alleged that she was discriminated against on the bases of
sex, disability and in reprisal for prior EEO activity when on August 4,
1997, she was placed on administrative leave and subsequently issued
a notice of removal. Complainant's complaint was initially dismissed
in a final agency decision dated February 3, 1998. However, the agency
rescinded its dismissal on January 6, 1999, and accepted for investigation
the issue of whether complainant was improperly placed on administrative
leave, and thereafter discharged in August 1997.
The record indicates that on February 11, 1999, an affidavit was
mailed to complainant's mother for completion concerning her deceased
daughter's complaint with the notice that failure to return it within
fifteen (15) calendar days of its receipt would result in the dismissal
of the complaint for failure to prosecute. The purpose of the letter
was to ascertain whether complainant's mother wished to further pursue
the subject complaint. The record further indicates that complainant's
mother received the request on or about February 17, 1999.
In its April 27, 1999 FAD, the agency dismissed complainant's complaint
for failure to provide requested information within a fifteen (15) day
time period in response to the agency's written request, dated February
11, 1999, pursuant to 29 C.F.R. � 1614.107(a)(7).
On appeal, complainant's mother indicated that there was some confusion as
to the exact matter regarding where to send the requested information.
Specifically, complainant's mother states �I don't work for post
office, and didn't know to send it to [a named agency EEO official]
in Memphis.� Regarding the agency's letter, dated February 11, 1999,
complainant's mother wrote �I am not a federal employee, and saw only
address and this person [complainant's EEO representative at the time
that she filed the instant complaint] made reference to. This is who
I sent my instructions to.�
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 regulation is applicable under the
following circumstances: (1) the agency has provided the complainant
with a written request to provide relevant information or to otherwise
proceed with the complaint; (2) the request included a notice of the
proposed dismissal for failure to respond within 15 days of receipt of
the request; and (3) the complainant either fails to respond to the
request within 15 days of receipt or the complainant's response does
not address the agency's request. The Commission has held that the
regulation is applicable, however, only in cases where there is a clear
record of delay or contumacious conduct by the complainant. See Anderson
v. United States Postal Service, EEOC Request No. 05940850 (February
24, 1995).
Upon review of the specific circumstances of this case, we find no
evidence of failure to prosecute or cooperate. It appears that the
request was unclear and/or caused the recipient confusion. The agency's
February 11, 1999 correspondence was an attempt to determine whether
complainant's estate wished to pursue her complaint, not a request
for information necessary for the further processing of the complaint.
The Commission had 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. U.S. Postal Service, EEOC Request
No. 05900693 (August 17, 1990); Brinson v. U.S. Postal Service, EEOC
Request No. 05900193 (April 12, 1990). Furthermore, only in cases
where the complainant has engaged in delay or contumacious conduct and
the record is insufficient to permit adjudication has the Commission
allowed a complaint to be dismissed for failure to cooperate. See Raz
v. U.S. Postal Service, EEOC Request No. 05890177 (June 14, 1989);
Delgado v. U.S. Postal Service, EEOC Request No. 05900859 (October 25,
1990). We find insufficient evidence of record to support the agency's
dismissal of the present complaint pursuant to 29 C.F.R. � 1614.107(a)(7).
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
The agency is ORDERED to resume processing of complainant's complaint
from the point where processing ceased. The agency shall acknowledge
to complainant's representative and mother that it has reinstated and
resumed processing of complainant's complaint.
A copy of the agency letter of acknowledgment must be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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)
(1994 & Supp. IV 1999). If the 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 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 (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
June 29, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The record reflects that complainant is deceased. The date of her
death does not appear to be contained in the record.