01986292
02-07-2000
Gary Petersen, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gary Petersen, )
Appellant, )
)
v. ) Appeal No. 01986292
) Agency No. 4F-940-0110-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning his 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., the Age Discrimination in Employment Act of 1967,
as amended, 29 U.S.C. �621 et seq., and Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. �791 et seq.<1> Complainant received
the final agency decision on July 22, 1998. The appeal was postmarked
August 6, 1998. Accordingly, the appeal is timely (see 64 Fed. Reg. 37,
644, 37, 659 (1999)( to be codified and hereinafter referred to as 29
C.F.R. � 1614.402(a)), and is accepted in accordance with EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue presented on appeal is whether the agency properly dismissed
the complaint on the grounds of failure to cooperate.
BACKGROUND
Complainant initiated contact with an EEO Counselor on March 25, 1998.
On May 21, 1998, appellant filed a formal EEO complaint wherein he
alleged that he had been discriminated against on the bases of his
race (white), color (white), age (43), sex (male), physical disability
(foot and back injury), and in reprisal for his previous EEO activity
when on March 25, 1998, he was issued a letter of warning for Failure
to Follow Instructions/Unauthorized Use of Overtime. The complaint
was accepted for investigation. By letter dated June 1, 1998, the EEO
Counselor/Investigator assigned to conduct the investigation forwarded
questions to complainant on affidavit forms.
In its final decision, the agency dismissed the complaint on the
grounds that complainant failed to cooperate. According to the agency,
complainant failed to respond to the affidavit request. The agency
noted that in its June 1, 1998 letter, complainant was advised of the
requirement to provide relevant information in the affidavit in order to
proceed with the investigation. The agency further noted that complainant
was informed that if an affidavit was not submitted within fifteen days,
the complaint would be dismissed.
On appeal, appellant contends that he was on military duty beginning
on June 1, 1998, and that he did not return home until June 19, 1998.
Complainant claims that he was also unable to respond to the affidavit
request in a timely manner because upon his return home he was sick and
his workload was heavy. In support of his position, complainant submits
a letter dated April 30, 1998, from the Department of the Army wherein
complainant was ordered to attend annual military training for 14 duty
days plus allowable travel time. Complainant was ordered to report to
the designated military installation no later than the morning of June 3,
1998.
ANALYSIS AND FINDINGS
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(7)) provides for the dismissal of 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. The regulation further provides that, instead of
dismissing for failure to cooperate, the complaint may be adjudicated
if sufficient information for that purpose is available.
Under the circumstances in this case, we find that the agency's dismissal
was improper. The record indicates that the agency sent complainant a
memorandum dated June 1, 1998, requesting that he furnish an affidavit
and indicating that failure to do so within 15 days would result in
dismissal of his complaint. According to the agency, complainant
failed to furnish his affidavit within the requisite time frame, and
therefore, his complaint should be dismissed for failure to cooperate.
We note, however, that the agency failed to show why complainant's
affidavit was necessary for the further processing of the complaint.
The agency has not claimed that the complaint was vague, and the agency
found that there was sufficient information in the record to be able
to define the complaint and accept it for investigation. Moreover,
we note that complainant's complaint addressed the incident of alleged
discrimination, with reference to the responsible agency official by
name, the bases on which he alleged discrimination, and the corrective
action sought. Further, complainant has established that he was away on
military duty during the time period that he was allotted for completing
the affidavit. Complainant therefore did not have an opportunity to
complete the affidavit within the 15-day time period. It would be
improper to dismiss the complaint in light of these circumstances as
complainant did not engage in delay or contumacious conduct.
The Commission has 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. United States Postal Service, EEOC Request
No. 05900693 (August 17, 1990); Brinson v. United States Postal Service,
EEOC Request No. 05900193 (April 12, 1990). It is only in cases where
the complainant has engaged in delay or contumacious conduct and the
record is insufficient to permit adjudication that the Commission has
allowed a complaint to be dismissed for failure to cooperate. See Card
v. United States Postal Service, EEOC Request No. 05970095 (April 23,
1998); Kroeten v. United States Postal Service, EEOC Request No. 05940451
(December 22, 1994). Therefore, under the circumstances, we find that the
agency's dismissal of complainant's complaint for failure to cooperate
was improper and is REVERSED. The complaint is hereby REMANDED for
further processing in accordance with the Order below.
ORDER (E1199)
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 an
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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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:
February 7, 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,
and the agency on:
DATE Equal Employment Assistant1 On 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.