01981106
11-05-1998
George E. Coles, Sr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
George E. Coles, Sr., )
Appellant, )
)
v. ) Appeal No. 01981106
) Agency No. 1C-151-1023-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On November 21, 1997, appellant filed a timely appeal with this
Commission from an October 22, 1997 final agency decision, received by
him on November 4, 1997. The agency dismissed appellant's complaint
for failure to cooperate.
In his January 17, 1996 complaint, appellant alleged that he was
discriminated against on the bases of race (African American) and sex
(male) when on or about December 1, 1995, he was denied a change
of schedule while in a limited duty capacity. In dismissing the
complaint, the agency noted in its final decision that after receiving
the investigative file, appellant requested a hearing before an EEOC
Administrative Judge (AJ). The agency further noted that the AJ issued
a letter which informed appellant that a prehearing conference and
hearing were scheduled. The agency stated, however, that appellant and
his representative failed to participate in the telephonic prehearing
conference scheduled by the AJ. Consequently, the AJ remanded the
complaint to the agency on the grounds of appellant's failure to
cooperate.
The record reveals that after the agency completed its investigation
of appellant's complaint, appellant requested a hearing before an AJ.
Although the record does not contain copies of the AJ's scheduling
letter or remand order, appellant does not dispute on appeal that he was
informed of the prehearing conference and hearing and that he failed
to participate. Appellant also does not dispute that the AJ remanded
his complaint to the agency because he failed to participate in the
prehearing conference.
EEOC Regulation 29 C.F.R. �1614.107(g) provides that the agency shall
dismiss a complaint or a portion 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.
Under the circumstances, we find that the agency improperly dismissed
the complaint. Due to appellant's inaction, he forfeited his right to
a hearing on his complaint. Wrenn v. Department of Veterans Affairs,
EEOC Request No. 05900010 (March 27, 1990). We find, however, that
appellant's failure to cooperate at the hearing stage, without more,
is not a sufficient showing to warrant cancellation of his complaint
on the grounds of failure to cooperate. 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 appellant 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 note that sufficient information
is likely to be available in a case processed to the hearing stage to
permit an adjudication on the merits. Therefore, we find that instead
of dismissing appellant's complaint pursuant to 29 C.F.R. �1614.107(g),
the agency should have issued a final decision on the merits based on
the information contained in the record. Therefore, we shall remand
the matter to the agency for issuance of a final decision pursuant to
29 C.F.R. �1614.110.
Accordingly, the agency's final decision is REVERSED and the complaint
is REMANDED to the agency for further processing consistent with the
Order below and applicable regulations.
ORDER
The agency is ORDERED to process the remanded complaint in accordance with
29 C.F.R. �1614.110 and to issue a final agency decision within thirty
(30) calendar days of the date this decision becomes final. A copy
of the final agency decision must be sent to the Compliance Officer,
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received by the
Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Nov. 5, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations