Laverne Richardson-Kelley, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 17, 2000
01995823 (E.E.O.C. Jul. 17, 2000)

01995823

07-17-2000

Laverne Richardson-Kelley, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Laverne Richardson-Kelley v. United States Postal Service

01995823

07-17-00

Laverne Richardson-Kelley, )

Complainant, )

)

v. ) Appeal No. 01995823

) Agency No. 1J607106694

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

____________________________________)

DECISION

INTRODUCTION

Complainant filed a timely appeal with this Commission from the

agency's final decision dated June 8, 1999, dismissing her complaint

of unlawful employment discrimination in violation of Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq.,

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq, and Section 501 of the Rehabilitation Act of

1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> The

Commission accepts the appeal in accordance with 64 Fed. Reg. 37, 644,

37, 659 (1999)(to be codified at 29 C.F.R. � 1614.405).

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed complainant's

claim for failure to cooperate by obstructing the complaint process.

BACKGROUND

After timely contacting an EEO Counselor, complainant filed a formal

complaint on May 15, 1995, alleging denial of family medical leave,

denial of pay for a work related injury, and disparate treatment in

violation of Title VII, the ADEA, and the Rehabilitation Act. In her

complaint, complainant alleged that she was subjected to discrimination

on the bases of race (black), color (light skinned), sex (female), age

(DOB: 9/22/45), physical disability (electrical shock to the left hand),

and reprisal (prior EEO activity) when:

on December 2, 1993, the superintendent denied her request for family

medical leave and refused to pay her for an on-the-job injury; and

treated complainant differently than similarly situated male employees.

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

final decision dated June 8, 1999, dismissing her complaint of unlawful

employment discrimination for failure to prosecute the complaint pursuant

to EEOC Regulation 29 C.F.R. � 1614.107(a)(7).

ANALYSIS AND FINDINGS

The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be

codified and hereinafter cited as 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.

Under the circumstances in this case, we find that the agency's dismissal

was proper. The record indicates that complainant received memoranda

from the agency requesting that she provide an affidavit on May 4,

1999, March 3, 1999, and August 3, 1998. All three of the agency's

requests indicate that complainant was warned that failure to supply said

information within 15 days would result in dismissal of her complaint.

According to the agency, complainant failed to furnish her affidavit, and

therefore, her complaint should be dismissed for failure to cooperate.

The EEOC Regulation at 29 C.F.R. � 1614.107(a)(7) further provides that,

instead of dismissing for failure to cooperate, the complaint may be

adjudicated if sufficient information for that purpose is available.

However, we find that the formal complaint and EEO Counselor's Report

alone provide insufficient information to allow the agency to properly

investigate and process the complaint without supplemental information.

For example, in the second issue, complainant failed to furnish the

agency with the incidents that were allegedly discriminatory. Moreover,

in her appeal complainant fails to proffer any statement justifying why

she neglected to provide the agency with the requested documentation.

Thus, we find that the agency properly dismissed complainant's claim

for failure to cooperate.

CONCLUSION

The Commission AFFIRMS the agency's final decision dismissing her

complaint due to complainant's failure to cooperate with the agency in

processing her complaint.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

07-17-00 ____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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.