Joseph Derby, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 10, 2000
01986343 (E.E.O.C. Feb. 10, 2000)

01986343

02-10-2000

Joseph Derby, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Joseph Derby, )

Appellant, )

)

v. ) Appeal No. 01986343

) Agency No. 1F-953-0025-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Complainant filed an appeal with this Commission from a final decision of

the agency concerning his complaint of unlawful employment discrimination

in violation of Title VII of the Civil Rights Act of 1964, as amended, 42

U.S.C. �2000e et seq., the Age Discrimination in Employment Act of 1967,

as amended, 29 U.S.C. �621 et seq., and Section 501 of the Rehabilitation

Act of 1973, as amended, 29 U.S.C. �791 et seq.<1> The final agency

decision was issued on July 17, 1998. The appeal was postmarked August

17, 1998. Accordingly, the appeal is timely (see 64 Fed. Reg. 37, 644,

37, 659 (1999)( to be codified and hereinafter referred to as 29 C.F.R. �

1614.402(a)), and is accepted in accordance with EEOC Order No. 960,

as amended.<2>

ISSUE PRESENTED

The issue presented on appeal is whether the agency properly dismissed

the complaint on the grounds of failure to cooperate.

BACKGROUND

Complainant initiated contact with an EEO Counselor on March 3, 1998.

On April 26, 1998, complainant filed a formal EEO complaint wherein

he alleged that he had been discriminated against in reprisal for

his previous EEO activity when on February 26, 1998, he was notified

that he would be reassigned to Tour 1. The complaint was accepted

for investigation with the inclusion of the additional bases of race

(unspecified), age (unspecified), and physical disability (unspecified),

which were raised in the informal complaint. By letter dated May 15,

1998, the EEO Counselor/Investigator assigned to conduct the investigation

forwarded questions to complainant's attorney for the purpose of having

complainant complete an affidavit. The affidavit request was received

by complainant's attorney on May 16, 1998.

In its final decision, the agency dismissed the complaint on the

grounds that complainant failed to cooperate. According to the agency,

complainant failed to respond to the affidavit request. The agency

noted that in its May 15, 1998 letter, complainant was advised of the

requirement to provide relevant information in the affidavit in order to

proceed with the investigation. The agency further noted that complainant

was informed that if an affidavit was not submitted within fifteen days,

the complaint would be dismissed.

On appeal, complainant contends that he may have submitted an affidavit

that is applicable to a different complaint.

ANALYSIS AND FINDINGS

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(7)) provides for the dismissal of a

complaint 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

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 regulation further provides that, instead of

dismissing for failure to cooperate, the complaint may be adjudicated

if sufficient information for that purpose is available.

Under the circumstances in this case, we find that the agency's dismissal

was improper. The record indicates that the agency sent complainant's

attorney an affidavit request dated May 15, 1998, requesting that

complainant furnish an affidavit and indicating that failure to do so

within 15 days would result in dismissal of his complaint. Complainant's

counsel received the affidavit request on May 16, 1998. According to the

agency, complainant failed to furnish his affidavit within the requisite

time frame, and therefore, his complaint should be dismissed for failure

to cooperate. We note, however, that the agency failed to show why

complainant's affidavit was necessary for the further processing of

the complaint. The agency has not claimed that the complaint was vague,

and the agency found that there was sufficient information in the record

to be able to define the complaint and accept it for investigation.

Moreover, we note that complainant's complaint addressed the incident

of alleged discrimination, with reference to the responsible agency

officials by name, the basis on which he alleged discrimination<3>,

and the corrective action sought.

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. 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). Therefore, under the circumstances, we find that the

agency's dismissal of complainant's complaint for failure to cooperate

was improper and is REVERSED. The complaint is hereby REMANDED for

further processing in accordance with the Order below.

ORDER (E1199)

The agency is ORDERED to process the remanded claims in accordance with

64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to

the complainant that it has received the remanded claims within thirty

(30) calendar days of the date this decision becomes final. The agency

shall issue to complainant a copy of the investigative file and also shall

notify complainant 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 complainant

requests a final decision without a hearing, the agency shall issue

a final decision within sixty (60) days of receipt of complainant's

request.

A copy of the agency's letter of acknowledgment to complainant and an

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 (K1199)

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 64 Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. �1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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

(R1199)

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:

February 10, 2000

_______________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative,

and the agency on:

DATE Equal Employment Assistant1 On November 9, 1999,

revised regulations governing the EEOC's federal sector

complaint process went into effect. These regulations apply

to all Federal sector EEO complaints pending at any stage in

the administrative process. Consequently, the Commission will

apply the revised regulations found at 64 Fed. Reg. 37,644

(1999), where applicable, in deciding the present appeal.

The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.

2The record does not establish when complainant's attorney received the

final agency decision. Absent evidence to the contrary, we find that

the instant appeal was timely filed.

3Although the agency accepted for investigation the bases of race,

age, physical disability, and reprisal, we note that complainant only

specifically referred to reprisal in his formal complaint. The other

bases were raised in the informal complaint but complainant did not

specify his race, age, and physical disability. If the investigation

includes these bases, it is advisable that the agency request complainant

identify with specificity the bases of discrimination being pursued.