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.