01990783
11-08-1999
John A. Simien, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John A. Simien, Jr. v. United States Postal Service
01990783
November 8, 1999
John A. Simien, Jr., )
Appellant, )
)
v. )
) Appeal No. 01990783
William J. Henderson, ) Agency No. 1F-946-0054-98
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On October 26, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), dated October 1, 1998, dismissing
his complaint for failure to cooperate. Accordingly, the Commission
accepts the appeal in accordance with EEOC Order No. 960, as amended.
On July 22, 1998, appellant filed a formal complaint alleging that he
was discriminated against on the bases of race/color (Creole) and sex
(male) when: on May 29, 1998, his supervisor made false allegations
which resulted in his unfair termination.
Appellant's complaint was accepted for investigation, and on August 3,
1998<1> an affidavit request was sent by Certified Mail to appellant.
The request notified appellant that he had fifteen (15) days to respond.
The Certified Mail package was returned to the agency after two (2)
attempts to deliver it to appellant's last known address, on August 4,
1998, and August 19, 1998. The record contains a copy of the agency's
affidavit questions, which included information pertaining to: the name
of the responsible officials; what verbal threats were made; whether
other employees under the same supervisor were treated differently;
the names of witnesses; and the relief appellant was seeking.
The agency dismissed appellant's complaint for failure to cooperate.
Specifically, the FAD indicated that the affidavit request had been
"Returned to Sender" after two attempts to deliver then to appellant.
Further, the agency determined that appellant had been notified that
his complaint would be dismissed if he did not provide the requested
information, citing a publication titled "What You Need to Know About
EEO" and various EEO forms.
EEOC Regulation 29 C.F.R. � 1614.107(g) provides that the agency
shall dismiss a complaint or a portion of a complaint when the agency
has provided the complainant with 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 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. 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 complainant 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); Delago
v. U.S. Postal Service, EEOC Request No. 05900859 (October 25, 1990).
In the instant case, two unsuccessful attempts were made to send
appellant an affidavit request. The Commission has previously held
that failure to provide an investigative affidavit does not, by itself,
constitute failure to cooperate. See Anderson v. USPS, EEOC Request
No. 05940850 (February 24, 1995). Moreover, we find that the agency
has failed to show that the affidavit was necessary for the continued
processing of appellant's complaint. Much of the information sought by
the affidavit appears to have been available elsewhere in the record.
For example, the complaint identifies a particular supervisor and
specific verbal threats; the Request for Counseling lists employees;
and the EEO Counselor's Report refers to another supervisor. Therefore,
we find that the agency improperly dismissed the complaint for failure
to cooperate. Accordingly, the agency's decision dismissing appellant's
complaint is 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:
11/08/1999
___________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The affidavit request is dated April 22, 1998. The accompanying Receipt
for Certified Mail, however, is dated August 3, 1998. It, therefore,
appears that the agency mistakenly dated the request "April" rather than
"August."