Karen Medina, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 29, 2000
01A05815 (E.E.O.C. Nov. 29, 2000)

01A05815

11-29-2000

Karen Medina, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Karen Medina v. U.S. Postal Service

01A05815

November 29, 2000

.

Karen Medina,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A05815

Agency No. 4-E-800-0316-99

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision dated July 25, 2000, dismissing her complaint of unlawful

employment discrimination brought under Title VII of the Civil Rights Act

of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq.<1>

By notice dated February 3, 2000, the agency informed complainant that

her three EEO complaints were being consolidated and processed under the

referenced complaint number. This same notice also informed complainant

that the agency dismissed two of the claims raised in these complaints,

but that the others were accepted for investigation. This notice

additionally informed complainant that an investigator would contact

her to provide an affidavit in the near future.

According to the record, the investigator sent the first request to

complainant for her affidavit on March 27, 2000, and her receipt was

verified by certified mail.<2> The request contained a notice that

failure to comply with the request within fifteen days could result

in dismissal of the complaint for failure to prosecute pursuant to

29 C.F.R. � 1614.107(g). Complainant then retained an attorney, who

submitted a written request to the investigator, dated April 20, 2000, for

a twenty day extension, which was granted. On May 10, 2000, the attorney

requested an additional twenty day extension, which was also granted.

On May 31, 2000, a paralegal from the attorney's office telephonically

requested a third extension. The investigator provided complainant

and her attorney a second written affidavit request, along with an

Agreement to Extend 180-Day Investigative Process. This second request

also contained a notice that failure to comply with the request within

fifteen days could result in dismissal of the complaint for failure to

prosecute pursuant to 29 C.F.R. � 1614. 107(g). Certified mail confirms

receipt by the complainant on June 2, 2000, and by the attorney's office

on June 3, 2000. When the investigator did not receive a timely response

from either complainant or her attorney, he recommended that the agency

issue a final decision dismissing the complaint for failure to prosecute.

The agency issued a final decision dismissing the complaint for failure

to prosecute, noting the history of delays outlined above. The agency

also found that complainant had been fully informed in writing by

the investigator of the risk of dismissal for failure to provide the

requested information within the fifteen-day period, further noting that

this same warning was reflected on several of the standard EEO forms

provided to complainant in the course of processing her complaint.

The agency further indicated that it lacked sufficient information to

process the complaint, and that dismissal for failure to prosecute was

therefore proper.

Complainant appealed this determination.<3> The agency requests that

we affirm its dismissal.

The regulation set forth at 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.

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 instant case, we find that the agency provided complainant

and her attorney with adequate written notice of the possibility of

dismissal for failure to provide the requested affidavit. The record

shows multiple delays for which no justification is provided. Further,

because the request at issue concerns complainant's initial affidavit, we

find that the investigator was unable to proceed with the investigation

and that the agency did not have sufficient evidence to adjudicate the

instant complaint.

Accordingly, we find that complainant failed to cooperate in the

processing of the instant complaint, and we AFFIRM the agency's dismissal.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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), 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 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 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 (S0900)

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 (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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 29, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

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 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2The exact date of receipt is unknown because complainant failed to

indicate the date on the certified receipt.

3The record shows that complainant's attorney filed a request for an

extension to submit a supporting statement to the Commission. However,

because the request for an extension was filed more than thirty days

after the Commission's filing of the appeal, the Commission denied the

request by letter dated September 28, 2000.