01a42260
04-27-2005
Marguerite Guzzo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marguerite Guzzo v. United States Postal Service
01A42260
April 27, 2005
.
Marguerite Guzzo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42260
Agency No. 1F-946-0021-02
DECISION
Complainant appeals to the Commission from the agency's December
24, 2003 decision dismissing complainant's complaint for failure to
cooperate pursuant to 29 C.F.R. � 1614.107(a)(7). Complainant alleges
discrimination on the bases of race, color, sex, and reprisal when:
(1) she was issued a Letter of Warning on January 31, 2002; and (2)
on a continuing basis from an unspecified date, complainant was denied
opportunities for training, higher level assignments and subjected to
a hostile working environment.
The agency argues that complainant received two separate requests for
information on December 17, 2002 and February 25, 2003, respectively.
The agency issued a decision dismissing complainant's complaint on April
23, 2003, for failure to cooperate. The agency, by letter dated July 10,
2003, rescinded the April 23, 2003 decision. The agency reasoned that a
portion of the complaint was settled via a settlement agreement between
the parties. The agency agreed to process the complaint. The record
indicates that a settlement agreement was reached by the parties on
April 1, 2002, resolving claim 1 and the portion of claim 2 regarding
the hostile work environment. The agency agreed to resume processing of
the remaining allegations with regard to denial of training and denial
of higher level assignments.
The agency argues that it requested more information from complainant
on August 8, 2003 and September 17, 2003. The agency argues that
complainant never responded to the first request. The agency argues that
after receiving the second request, complainant, on October 17, 2003,
requested a 30-day extension. The record indicates that the agency
granted a 30-day extension to respond to the request. Complainant did
not respond to the second request despite the 30-day extension. When the
30-day extension expired, the agency dismissed complainant's complaint
for failure to cooperate.
The agency argues that complainant failed to respond to four different
requests for more information. We find, however, that two of the requests
occurred prior to the agency rescinding its first decision. Thus, for
purposes for dismissal under grounds for failure to cooperate, we will
only consider the agency's requests for information after the agency's
decision to rescind. After the agency's decision to rescind, the agency
requested more information twice. The agency granted an extension for
complainant to respond to the second request. The agency argues that
complainant did not respond to the request for more information within
the extended time period.
We find that the agency's dismissal for failure to cooperate is improper.
The record indicates that complainant was incapacitated to the extent
that despite due diligence, she was unable to respond within the agreed
upon time frame. The record contains a letter from a doctor dated
March 18, 2004, indicating that complainant, after being diagnosed
with cancer, was �traumatized and overwhelmed in numerous psychiatric
ways making it impossible for her to respond to the affidavit within the
prescribed time frames.� The letter indicates that complainant remained
incapacitated throughout October, November, and December 2003. The record
contains a second letter from a different doctor dated March 19, 2004.
The letter indicates that complainant, after being diagnosed, �suffered
from severe depression� and was �unable to handle paperwork.� We find
complainant has presented adequate justification to warrant extension
of the applicable limitation period for cooperating with the agency's
request for information. Thus, we find the agency's dismissal improper.
The agency's decision dismissing complainant's complaint is REVERSED and
we REMAND the matter to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 a
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
April 27, 2005
__________________
Date