Joyie Hamer, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 9, 2000
01990986 (E.E.O.C. Feb. 9, 2000)

01990986

02-09-2000

Joyie Hamer, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Joyie Hamer, )

Complainant, )

)

v. ) Appeal No. 01990986

) Agency No. 1-F-901-0137-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On November 9, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by her on

October 28, 1998, pertaining to her 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.<1> In her complaint, complainant

alleged that she was subjected to discrimination on the bases of race

(African-American), color (Creme de Coca), national origin (Asian),

gender (female), and in reprisal for prior EEO activity when:

Complainant was instructed to wear a badge at all times; and

Complainant was singled-out and subjected to a hostile work environment.

Initially, the agency accepted complainant's complaint for investigation

by letter dated August 17, 1998. The investigator sent two separate

requests for an affidavit from complainant, dated August 19, 1998

(Request-1), and September 23, 1998 (Request-2). When complainant failed

to respond satisfactorily, the agency issued a FAD on October 23, 1998,

dismissing the complaint for failure to cooperate.

In its FAD, the agency found that complainant received Request-1 on August

20, 1998, but returned the document without completing the affidavit.

The agency also found that Request-2 was returned unclaimed. The agency

noted in its FAD that complainant was aware of her duty to update the

agency with any changes of address. The agency also found that the

formal complaint form, Counselor's Report, and Notice-of-Right-to-File

all informed complainant that the failure to provide information could

result in dismissal of her complaint.

The record includes a copy of Request-1 and Request-2. Both documents

ask that complainant complete and return the affidavit within fifteen

(15) days. Neither document, however, informs complainant that her

failure to complete the affidavit could result in dismissal of her

complaint. The record also includes complainant's response to Request-1.

Therein, complainant stated that she had already provided the information

requested, and assumed that Request-1 was a duplicate.

The record also contains a letter from the investigator to agency EEO

officials, stating that complainant returned Request-1 on August 31, 1998,

on the mistaken assumption that she had already provided the information.

The investigator also explains that he called complainant on September

23, 1998, and informed her that she had not responded to the questions.

Finally, the investigator states that he sent Request-2 on September 23,

1998, but it was returned �unclaimed.�

The record also contains the Counselor's Report, and five different

requests-for-counseling, three of which were dated March 7, 1998,

one dated March 13, 1998, and one of which was undated. In these

requests-for-counseling, complainant identifies the responsible agency

officials, explains the incidents alleged, gives dates for the incidents

alleged, and requests specific relief. Specifically, complainant

explains that she was not made aware of local rules and regulations,

but then was reprimanded for failing to follow the regulations.

Complainant also states that she was singled-out for not wearing her

badge while several other employees were not disciplined although they

were not wearing badges. Further, complainant asserts that she was

approached in an unprofessional manner, and that no guards were posted

at the doors or guard booths to ensure the workers' safety.

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 neither request

included a notice of proposed dismissal as required by EEOC Regulations.

Further, complainant informed the agency that she had already provided the

information requested. 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 and numerous requests

for counseling, along with the EEO Counselor's Report, addressed the

incident of alleged discrimination, named the responsible agency official,

identified the bases on which she alleged discrimination, and enumerated

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). In the present case, there appears to be sufficient

information on which to base an adjudication and there is no evidence

of contumacious conduct. Therefore, under the circumstances, we find

that the agency's dismissal for failure to cooperate was improper.

CONCLUSION

Accordingly, the agency's dismissal is REVERSED, and the complaint is

REMANDED for further investigation.

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 9, 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

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant 1On 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.