0120131274
06-19-2013
John R. Banks, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
John R. Banks, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120131274
Agency No. 4C-400-0007-12
Hearing No. 470-2012-00145X
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final action dated January 30, 2013, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Postmaster at the Agency's Nortonville, Kentucky Post Office.
On January 6, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race, sex, color, age, and in reprisal for prior EEO activity when:
1. on or about November 7, 2010, he became aware he was not selected for Postmaster, Leonard Wood, Missouri;
2. on November 29, 2010, he was notified of his non-selection for the position of Postmaster, Jeffersonville, Indiana; and
3. on or about January 5, 2012, he became aware he was not given a detail into Oak Grove, Kentucky or Hopkinsville, Kentucky offices.
After the investigation, Complainant was provided with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. The record reflects that by a document titled "Order of Dismissal" dated January 7, 2013, the AJ dismissed Complainant's formal complaint on the grounds of failure to cooperate relating to the instant formal complaint. Specifically, the AJ stated that during a November 28, 2012 settlement conference, the Agency stated that Complainant had failed to file an affidavit. The AJ further noted that on two separate occasions, affidavit requests were mailed to Complainant each with delivery confirmations but Complainant failed to answer either one.
Furthermore, the AJ noted that Complainant was familiar with the affidavit procedure because Complainant had engaged in prior protected activity. The AJ noted that Complainant initially indicated the Agency was wrong in its assertion that Complainant never filed an affidavit. Complainant was instructed to fax a copy of his completed affidavit. The AJ stated, however, rather than faxing the affidavit, Complainant sent an email to the Agency indicating "that he was unclear as to what 'affidavit' was being requested." The AJ noted that a subsequent call was made between all parties at which time Complainant conceded that he had never filed an Affidavit in this matter, and that "in other words he was untruthful when he told this Administrative Judge that the Affidavit had been filed."
The record further reflects that on January 30, 2013, the Agency issued the instant final decision pursuant to 29 C.F.R. � 1614.110(b), implementing the AJ's January 7, 2013 Order of Dismissal.
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides for the dismissal of a complaint where the Agency has provided Complainant with a written request to provide relevant information or otherwise proceed with the complaint, and Complainant has failed to respond to the request within fifteen days of its receipt, or Complainant's response does not address the Agency's request, provided that the request included a notice of the proposed dismissal. The regulation further provides that, instead of dismissing for failure to cooperate, the complainant may be adjudicated if sufficient information for that purpose is available. Generally, the Commission has held that an agency should not dismiss a complaint when it has sufficient information upon 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 as allowed a complaint to be dismissed for failure to cooperate. See Card v. United States Postal Service, EEOC Request No. 05970095 (April 23, 1998); Kroeten v. United States Postal Service, EEOC Request No. 05940451 (December 22, 1994).
Here, we find that despite the attempts by the investigator to obtain an affidavit from Complainant, Complainant never provided it to the investigator. We note that during the November 28, 2012 settlement conference, Complainant claimed that he filed an affidavit. The AJ instructed Complainant to fax him a copy of his completed affidavit but instead, Complainant sent an email to the Agency indicating he was unsure what affidavit was being requested. Complainant later acknowledged that he never filed an affidavit. Moreover, Complainant never gave any explanation for not providing an affidavit either during the investigation or on appeal. As such, we find that the AJ's dismissal was appropriate.
Based on our careful review of the record and consideration of all arguments presented on appeal, the Agency's final action implementing the AJ's dismissal of the instant complaint for failure to cooperate is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (S0610)
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. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
June 19, 2013
__________________
Date
2
0120131274
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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