Mary A. White, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 3, 2000
01982319 (E.E.O.C. May. 3, 2000)

01982319

05-03-2000

Mary A. White, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Mary A. White v. United States Postal Service

01982319

May 3, 2000

Mary A. White, )

Complainant, )

)

v. ) Appeal Nos. 01982319

William J. Henderson, ) 01995050

Postmaster General, ) Agency No. 1-C-431-0054-97

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from two agency

decisions both dismissing a portion of 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. and the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq.<1> The regulation set forth at 64 Fed. Reg. 37, 644, 37,656

(1999) (to be codified and hereinafter referred to as 29 C.F.R. �

1614.107(b)) provides that where an agency decides that some but not

all of the claims in a complaint should be dismissed, the agency shall

notify the complainant of its determination; however this determination

is not appealable until final action is taken on the remainder of the

complaint. The agency decisions, when considered together, dismissed

the entire complaint. Therefore, we find the instant matter ripe for

review on appeal.

In her complaint, complainant alleged that she was subjected to

discrimination on the bases of sex (female) and age (52) when:

On July 22, 1997, complainant was not utilized as a supervisor on a

regular basis (5 days a week) after being removed from the Associate

Supervisor Program.

On July 22, 1997, complainant was not allowed to see her test results

of weeks 1 and 2 of the Associate Supervisor Program.

On January 7, 1998, the agency dismissed claim (2) pursuant to the

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

and hereinafter referred to as 29 C.F.R. � 1614.107(a)(2)), for raising

a matter that has not been brought to the attention of an EEO Counselor

and is not like or related to a matter that has been brought to the

attention of an Counselor. The agency noted that complainant did not

contact an EEO Counselor regarding claim (2) until December 22, 1997,

approximately five months after the alleged discriminatory action took

place on July 22, 1997. In its decision, the agency also found that issue

(2) should be dismissed based on untimely EEO Counselor contact.

On May 20, 1999, the agency dismissed claim (1) pursuant to the regulation

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

hereinafter referred to as 29 C.F.R. � 1614.107(a)(7)), for failure to

cooperate. On April 15, 1999, the Administrative Judge (AJ) remanded

claim (1) back to the agency for issuance of a final decision based

on complainant's failure to proceed with the prosecution of her case.

Upon remand, the agency noted that numerous attempts were made to contact

the complainant and her representative regarding preliminary pre-hearing

matters. The agency stated that no effort was made by complainant or

her representative to contact the AJ regarding any conflicts with the

subsequent scheduling dates or other pre-hearing matters. Thus, the

agency dismissed claim (1) on the grounds of failure to cooperate.

EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides that the 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 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. Instead of dismissing for failure to cooperate,

the complaint may be adjudicated if sufficient information for that

purpose is available.

Regarding claim (1), the Commission finds that complainant has failed

to claim or show that the AJ acted improperly when the AJ determined

that complainant failed to attempt to resolve a scheduling conflict.

Therefore, we find that the AJ acted within her discretion when

she canceled the hearing and remanded the matter to the agency.

The Commission finds that although complainant is no longer entitled to

a hearing, the agency can still issue a final decision pursuant to the

regulation set forth at 64 Fed. Reg. 37,644, 37657 (to be codified as

and hereinafter cited as 29 C.F.R. � 1614.110). An investigation has

been completed and the agency has not claimed that the record does not

contain sufficient information for issuing a decision without a hearing.

Therefore, we find that the agency's decision dismissing claim 1 for

failure to cooperate was improper.

With regard to claim (2), we find that the agency improperly dismissed

this claim for raising a matter that has not been brought to the attention

of an EEO Counselor and is not like or related to a matter that has been

brought to the attention of an EEO Counselor. The Commission finds that

claim (2) is related to claim (1). Therefore, the Commission shall

remand the entire complaint so that the agency can issue a decision

pursuant to � 1614.110 without a hearing.

In addition, we note that the agency improperly dismissed claim (2)

on the grounds of untimely EEO Counselor contact. Because claim (1)

was timely brought to the attention of an EEO Counselor, we find that

claim (2), which is related to claim (1), was also timely raised with

an EEO Counselor.

The agency's two decisions dismissing the complaint are REVERSED and we

REMAND the matter for further processing in accordance with this decision

and applicable regulations.

ORDER

The agency shall issue a final decision pursuant to � 1614.110 within 60

days of the date this decision becomes final. A copy of the agency's

final decision shall be sent to the Compliance Officer as referenced

herein.

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 (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 (R0400)

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").

May 3, 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

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.