01a34316
12-04-2003
Keasha Kirkland, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Keasha Kirkland v. United States Postal Service
01A34316
12/1/2003
.
Keasha Kirkland,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34316
Agency No. 1E-971-0009-03
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated June 18, 2003, dismissing her 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.
In her formal complaint, dated November 26, 2002, complainant alleged that
she was subjected to discrimination on the bases of race and in reprisal
for prior EEO activity when on September 15-16, 2002, complainant's
supervisor refused complainant medical treatment by her physician.
In a letter from the agency to complainant dated February 26, 2003,
the agency accepted complainant's claim for investigation.
In its final decision dated June 18, 2003, the agency dismissed
complainant's complaint for failure to cooperate. The agency determined
that it attempted to contact the complainant numerous times to obtain
an affidavit. Specifically, the agency contends it took the following
steps to request information:
1) an affidavit request was sent to complainant's address, listed on
her formal complaint, on April 14, 2003 and was returned with a stamp
stating, �Moved, Left No Address;�
2) the investigator of the complaint contacted the agency's personnel
office to obtain complainant's most recent address;
3) a second affidavit request was sent to complainant on April 22, 2003,
to the address obtained from the personnel office and was returned with
a note indicating �NSN� (no such number); and
4) a third affidavit request was sent to complainant on April 28, 2003,
to the address obtained from the personnel office and was returned
as unclaimed.
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 record contains copies of the returned affidavit requests thus
supporting the agency's assertion that it tried to contact complainant
numerous times to request information. In addition, a copy of the
affidavit requests state that if the affidavit is not returned within
15 days after its receipt, the complaint may be dismissed for failure
to cooperate. The complainant makes no arguments, on appeal, regarding
her failure to keep her address current with the agency's EEO office.
Furthermore, the record reflects complainant received a booklet entitled
�What You Need to Know About EEO,� (Publication 133) which advised
complainant that failure to notify the EEO office of a change in address
could result in dismissal of her complaint.
Accordingly, the dismissal of complainant's complaint for failure to
cooperate is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
12/4/2003
Date