01A34486
12-12-2003
Marsha Green, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marsha Green v. United States Postal Service
01A34486
December 12, 2003
.
Marsha Green,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34486
Agency No. 1F-946-0041-03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 3, 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. In her complaint, complainant
alleged that she was subjected to discrimination on the bases of race,
sex, and disability when:
Complainant received a Letter of Warning, dated November 5, 2002;
Complainant received a work status report dated 11/26/02;
Complainant received a limited duty job offer, dated 11/26/02, in which
the agency failed to accommodate her disability;
Complainant received a five-day no-time-off suspension, dated January
7, 2003;<1>
In a final decision dated July 3, 2003, the agency dismissed the complaint
pursuant to 29 C.F.R. � 1614.107(a)(7) for failure to cooperate.
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 regulation further provides
that, instead of dismissing for failure to cooperate, the complaint may
be adjudicated if sufficient information for that purpose is available.
Under the circumstances in this case, we find that the agency's dismissal
of the complaint was improper. The record indicates that on June 9, 2003,
complainant received a memorandum from the agency requesting that she
clarify her complaint and indicating that failure to do so within 15 days
would result in dismissal of her complaint. According to the agency,
complainant failed to respond to the agency's request for clarification
within the requisite time frame. The Commission finds that together
with other materials submitted by complainant on appeal, she includes a
letter she claimed to submit to the agency, dated June 16, 2003, which
clarifies her complaint, and identifies the four claims enunciated above.
We note that by letter to the complainant dated May 27, 2003, the
agency accepted complainant's complaint for investigation, framing the
complainant's complaint as encompassing two claims, the Letter of Warning
dated 11/3/02 (claim 2 above) and the 5-day, No-Time-Off Suspension,
dated January 7, 2003 (claim 5 above). Further, complainant alleged in
her clarification letter of June 16, 2003, that the limited duty offer
and work status of 11/26/02 were the result of the agency's failure
to accommodate her disability. Moreover, we note that complainant's
complaint, along with the EEO Counselor's Report, addressed the incidents
of alleged discrimination, with reference to the responsible agency
official by name, the bases on which she alleged discrimination, and the
corrective action sought. We find these claims are sufficiently clear
to permit the agency to conduct an adequate investigation. Therefore,
under the circumstances, we find that the agency's dismissal of claims
(1) - (4) for failure to cooperate was improper.
We therefore REVERSE the agency's dismissal of the complaint. We REMAND
the complaint to the agency for further processing as directed herein.
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
December 12, 2003
__________________
Date
1We have framed the claims (1 - 4) of
complainant's complaint as enunciated and clarified in complainant's
letter to the agency, dated June 16, 2003.