01990324
01-12-2000
Kenneth S. Simpson, )
Complainant, )
)
v. ) Appeal No. 01990324
) Agency Nos. 4-H-350-0182-97
William J. Henderson, ) 4-H-350-0241-97
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On October 14, 1998, the Commission received an appeal from
complainant.<1> Complainant, through his attorney, was attempting to
file appeals on Agency Numbers 4-H-350-0241-97 and 4-H-350-0194-98. The
agency submitted the files for all of complainant's pending complaints,
which included final agency decisions (FADs) for 4-H-350-0182-97, dated
May 4, 1998, and 4-H-350-0241-97, dated May 6, 1998. In a note attached
to its submission of the files, the agency explained that it had not
issued a FAD for 4-H-350-0194-98 and was still processing the case.<2>
In each complaint, complainant alleged discrimination on the bases of
race (Caucasian), color (white), sex (male), and physical disability
(lower back) in violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791 et seq. In Agency Number
4-H-350-0182-97, complainant alleged that he suffered harm when:
Management threatened to fire complainant in March 1997, and issued
a Notice of Proposed Removal on April 10, 1997, that was reduced to a
fourteen-day suspension on May 15, 1997;
Complainant was physically assaulted by management; and
In May 1997, management acknowledged its harassment of complainant by
stating �I am harassing you now,� in the presence of a witness.
In 4-H-350-0241-97, complainant alleged that he suffered harm when:
On May 25, 1997, and May 28 through June 5, 1997, complainant was forced
to provide affidavits relative to the actions of co-workers; and
Complainant's requests for advanced sick leave were disapproved, and
complainant was denied leave under the Family Medical Leave Act (FMLA).
The agency dismissed both 4-H-350-0182-97 and 4-H-350-0241-97 for failure
to cooperate. Specifically, the agency found that it mailed a request
for an affidavit concerning each complaint, both of which complainant
received on February 24, 1998. When complainant failed to respond to
the requests, the agency mailed a second copy for each complaint, which
complainant received on April 23, 1998. In both FADs, the agency found
that complainant never responded to its requests.
By letter dated May 28, 1998, complainant's attorney stated that no
signature was obtained for several letters that the agency supposedly
sent via certified mail. The attorney also contends that he contacted
the EEO office to advise the agency that he would be unavailable while
he underwent surgery. According to the letter, the agency agreed to an
extension on complainant's pending complaints, but then dismissed the
complaints for lack of cooperation when complainant failed to respond
to agency requests.
The record reveals that complainant's attorney received the FAD for
4-H-350-0182-97 on June 2, 1998. The date that complainant received
the FAD for 4-H-350-0241-97 is unclear.
The record also contains an affidavit from complainant, stamped as
received by the agency on November 9, 1998, and an affidavit from
complainant dated April 14, 1997, which was attached to complainant's
request for counseling. The record does not include a copy of the
agency's requests for information.
ANALYSIS AND FINDINGS
4-H-350-0182-97
The record reveals that complainant received the agency's FAD on June
2, 1998. Therefore, in order to be considered timely, complainant
had to file his appeal no later than July 2, 1998. Complainant has
not offered adequate justification for an extension of the applicable
time limit for filing his appeal. Accordingly, complainant's appeal
of Agency Number 4-H-350-0182-97 is hereby DISMISSED for untimeliness.
See 64 Fed. Reg. 37,644, 37,659, 37, 661 (1999)(to be codified as 29
C.F.R. �� 1614.402 and 1614.604).
4-H-350-0241-97
The Commission accepts the appeal of Agency Number 4-H-350-0241-97
as timely. See EEOC Order No. 960, as amended. EEOC Regulations
provide for the dismissal of a complaint where the agency has provided
the complainant with a written request to provide relevant information,
and the complainant has failed to respond to the request within 15 days of
its receipt, provided that the request included a notice of the proposed
dismissal. See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29
C.F.R. � 1614.107(a)(7)) The regulations further provide that, instead
of dismissing for failure to cooperate, the complaint may be adjudicated
if sufficient information for that purpose is available. Id.
The Commission finds that the agency's dismissal was improper. Without a
copy of the request for information, the Commission cannot find that
complainant had notice that his failure to respond might result in
dismissal. It also is unclear whether the agency granted complainant
an extension to respond. Further, given that the agency received an
affidavit from complainant during counseling that detailed the incidents
alleged, it would appear that the agency had sufficient information to
process the subject complaint.
CONCLUSION
The appeal of Agency Number 4-H-350-0182-97 is DISMISSED. The agency's
dismissal of Agency Number 4-H-350-0241-97, however, is REVERSED, and the
complaint is REMANDED for a supplemental investigation as provided 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 (T1199)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed AND that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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:
January 12, 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.
2Since no FAD has been issued for Agency Number 4-H-350-0194-98, the
complaint is not properly before the Commission, and we will not address
it in the present appeal.