01992594
05-15-2001
Harold Oatez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Harold Oatez v. United States Postal Service
01992594
May 15, 2001
.
Harold Oatez,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01992594
Agency No. 1F941111995
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated May 11, 1998, dismissing his 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (unspecified), color (unspecified) and reprisal
(unspecified) when, on June 13, 1995, complainant learned that a junior
employee was selected ahead of him as a full-time Special Delivery
Messenger. Complainant's complaint was accepted, an investigation was
performed without the aide of complainant's affidavit, and complainant
requested a hearing before an Administrative Judge (AJ). The AJ remanded
the complaint back to the agency, stating that she did not have enough
information to continue with the hearing stage.<1> A supplemental
investigation was performed, pursuant to the AJ's instructions. However,
complainant again failed to supply an affidavit to the agency, contrary
to the direction of the AJ in her remand letter. The agency therefore
dismissed the complaint for failure to proceed. Complainant brings the
instant appeal from that dismissal.
The agency dismissed complainant's claim pursuant to EEOC Regulation 29
C.F.R. � 1614.107(g), for failing to �respond to the agency's written
request to provide information in order for the agency to proceed with
the complaint.� EEOC Regulation 29 C.F.R. � 1614.107(g) states in
relevant part that the agency shall dismiss a complaint or a portion
of a complaint�[w]here 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 . . . provided that the request
included a notice of the proposed dismissal.�
After a review of the investigative report, the Commission finds that
there is sufficient evidence in the record for the agency to render
a final decision on the merits of the claim. While the Commission
acknowledges that the agency has made sufficient efforts in accordance
with the direction of the AJ, a final agency decision on the merits
should be issued as there is now sufficient information on which to base
an adjudication. See Ross v. United States Postal Service, EEOC Request
No. 05900693 (August 17, 1990) (agency may not cancel a complaint if it
has sufficient information upon which to base an adjudication); Brinson
v. United States Postal Service, EEOC Appeal No. 01894032 (November 15,
1989), request to reopen denied, EEOC Request No. 05900193 (April 17,
1990). We note that the investigative file does not specify the race,
color, or protected EEO activity of either complainant or the comparator.
However, we note that the agency neither claims that it is incapable
of obtaining this information without complainant's assistance nor
specifically identifies any other information which complainant has failed
to provide which is needed in order to address the merits of this matter.
Nonetheless, while complainant had requested a hearing before an AJ, we
consider complainant's failure to provide the agency with his affidavit
after being instructed to do so by the AJ as a constructive withdrawal
of this request. Accordingly, the decision to dismiss complainant's
complaint is hereby REVERSED. The complaint is REMANDED back to the
agency to issue a FAD on the merits, in accordance with the order below.
ORDER (E0900)
Within sixty (60) days from the date this decision becomes final, the
agency shall take final action in accordance with 29 C.F.R. �1614.110(b).
A copy of the agency's final decision must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(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 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
May 15, 2001
__________________
Date
1 The Commission notes that this action by
the AJ was proper under the regulations in existence in 1996, when the
remand letter was written. On November 9, 1999, revised regulations
governing the EEOC's federal sector complaint process went into effect.