01980097
10-09-1998
Laura E. Green v. United States Postal Service
01980097
October 9, 1998
Laura E. Green, )
Appellant, )
)
v. ) Appeal No. 01980097
) Agency No. 1-H-337-1030-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency concerning 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. The final agency decision was received by
appellant on August 26, 1997. The appeal was postmarked September 25,
1997. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to cooperate.
BACKGROUND
Appellant contacted an EEO counselor on July 18, 1995, regarding
allegations of discrimination. Specifically, appellant alleged that she
was discriminated against when on June 6, 1995, following an audit on
window stock which showed a shortage, appellant was denied a second count
and was required to pay the shortage immediately. Informal efforts to
resolve appellant's concerns were unsuccessful. Accordingly, on August
30, 1995, appellant timely filed a formal complaint of discrimination
on the basis of reprisal (prior EEO activity).
In a letter dated April 6, 1996, appellant requested a hearing before
an EEOC Administrative Judge (AJ) concerning the issues raised in her
formal complaint. The record indicates that a pre-hearing conference
was scheduled for March 11, 1997 at 10:00 a.m. Appellant and her
representative failed to appear at the March 11, 1997 pre-hearing
conference. Instead, on March 11, 1997, appellant faxed a letter advising
the AJ that she could not be present for the scheduled conference.
Appellant's fax requested that arrangements be made for a telephonic
pre-hearing conference to be held at a future date. The record further
indicates that a second pre-hearing conference was scheduled for April
30, 1997 at 12:30 p.m. Again, appellant failed to appear. Rather,
appellant returned a phone call from the AJ stating that she could not
be present for the 12:30 p.m. conference and that she had sent a fax
to that effect on April 29, 1997. In a decision dated May 20, 1997,
the AJ remanded appellant's complaint to the agency, noting that the
agency may dismiss the complaint for failure to prosecute or issue a
final decision without a hearing.
On August 18, 1997, the agency issued a final decision dismissing
appellant's complaint for failure to cooperate.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(g) provides that an agency shall
dismiss 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 fifteen (15) days of its receipt or the Complainant's response
does not address the agency's request, provided the request included a
notice of the proposed dismissal. Instead of dismissing for failure to
cooperate, the complaint may be adjudicated if sufficient information
for that purpose is available.
Appellant has not argued on appeal that she was improperly denied a
hearing before an AJ. The Commission finds, however, that the agency's
dismissal of the complaint for failure to cooperate was improper.
The investigation of the complaint has been completed. The agency has
not argued that there is more information that is needed from appellant
to issue a decision on the merits of the complaint. The Commission
finds that there is sufficient information in the record to permit
adjudication of the complaint. Accordingly, we find that the agency
should have issued a final decision pursuant to �1614.110.
CONCLUSION
The agency's decision dismissing appellant's complaint is REVERSED and
we REMAND the matter to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER
The agency is ORDERED to process the remanded complaint in accordance with
29 C.F.R. �1614.110 and to issue a final agency decision within sixty (60)
days of the date this decision becomes final. A copy of the final agency
decision must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (MO795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a
timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407.
All requests and arguments must bear proof of postmark and 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 filed on
the date it is received by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
October 9, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations