01990222
10-05-1999
Helene Nakis, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Helene Nakis, )
Appellant, )
)
v. )
) Appeal No. 01990222
William J. Henderson, ) Agency No. 4A-000-0002-98
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The appellant timely filed an appeal with this Commission from a final
agency decision (FAD), dated September 15, 1998, which the agency
issued pursuant to 29 C.F.R. �1614.107(a). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
On June 2, 1998 appellant filed a formal complaint alleging discrimination
on the bases of sex, retaliation, and disability (lower back and right
leg). Specifically, appellant alleged she was discriminated against
when: 1) forms 50 corrected, bring salary to proper level, back pay
from level 18 to 19; 2) reinstatement of S/L, A/L, LWOP; 3) she was not
accommodated for physical disability; 4) she was not trained properly; 5)
she was penalized for excessive LWOP; 6) she was harassed to come back
to work to force her to retire; 7) her career with USPS was destroyed;
and, 8) her health was destroyed.
In a letter dated July 29, 1998, and received by appellant on August
1, 1998, the agency informed appellant that her complaint required
clarification. Specifically, the agency stated that appellant had �failed
to articulate how [she] suffered any loss or harm with respect to a term,
condition, or privilege� of her employment. The agency requested that
appellant provide complete answers to eight questions. The appellant
was also notified that if she failed to respond within fifteen (15)
days her complaint could be dismissed pursuant to 29 C.F.R. �1614.107(g).
Appellant responded to the agency's request for clarification, in
a letter dated August 12, 1998. Appellant indicated that due to her
health problems she would be unable to provide responses to the agency's
inquiry at that time. She also stated that she had previously submitted
the requested information to her EEO counselors.
The agency dismissed allegations 1, 2, 3, 4, 5, 7, and 8 for failure to
state a claim. Specifically, the agency determined that appellant failed
to respond specifically to the questions in their July 29, 1998 letter.
The FAD also stated that the documentation provided by the EEO office
pertained to issues subsequent to the instant complaint. Therefore, the
agency concluded, appellant failed to indicate how she was �aggrieved.�
Allegation 6 was accepted for investigation.
Although the agency dismissed appellant's allegations for failure
to state a claim, its reasoning seems to follow EEOC Regulation 29
C.F.R. �1614.107(g). EEOC Regulation 29 C.F.R. �1614.107(g) provides
that an agency shall dismiss a complaint or portion of a complaint for
failure to cooperate 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 fifteen (15) calendar days of receipt, or the complainant's
response does not address the agency's request. Instead of dismissing
for failure to cooperate, the complaint may be adjudicated if sufficient
information for that purpose is available.
An agency's decision to invoke the provisions of 29 C.F.R. �1614.107(g)
should be made only when there is a clear record of delay or contumacious
conduct by the complainant. See Connolly v. Papachristid Shipping
Ltd., 504 F.2d 917 (5th Cir. 1974). 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 (prosecute). See Raz v. United States Postal
Service, EEOC Request No. 05890177 (June 14, 1989).
In the instant case, we find the agency improperly dismissed appellant's
complaint. The agency issued a letter dated July 29, 1998 requesting
that the appellant clarify her allegations. Appellant responded, within
the fifteen (15) day time limitation, in a letter dated August 12, 1998
and received by the agency on August 14, 1998. Although the appellant
failed to answer the agency's questions, she notified the agency that
her health prevented her from doing so at that time and that she would
reply when her health allowed her to. She also informed the agency
that the information had been submitted to her first EEO counselor.
Moreover, there is no indication that the agency made any other attempts
to contact appellant, in writing, to clarify the allegations. Therefore,
we find that the record does not contain evidence of contumacious conduct
or delay by the appellant in the processing of her complaint.
On appeal, appellant provides clarification of the issues raised in the
agency's July 29, 1998 letter. We find that appellant's supplemental
information states a claim. For example, as to allegation 3 (not
accommodated for physical disability) appellant explains that she
informed her supervisor on many occasions about her back pain and
that she was not provided with an orthopedically correct chair until
April 1998. With regard to allegation 5 (penalized for excessive LWOP),
appellant indicates that upon returning to work she discovered that her
requests to change her LWOP into Code 49 (Injured on Duty-OWCP) had not
been implemented. As a result, appellant alleges, she lost hundreds of
hours leave and did not receive annual increases. Appellant goes on to
provide additional details to each of the agency's questions. Therefore,
we find that the agency's dismissal of appellant's complaint was improper.
Accordingly, the agency's decision to dismiss appellant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a 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 (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:
October 5, 1999
___________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations