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.