Helene Nakis, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 5, 1999
01990222 (E.E.O.C. Oct. 5, 1999)

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