01983624
05-24-1999
Michael S. Kohan, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michael S. Kohan v. United States Postal Service
01983624
May 24, 1999
Michael S. Kohan, )
Appellant, )
)
v. ) Appeal No. 01983624
) Agency No. 4-H-321-0159-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On April 2, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on March 21, 1998,
pertaining to his 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., the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq. and �501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. In his
complaint, appellant alleged that he was subjected to discrimination on
the bases of physical disability (laminectomy - spine), race (Caucasian),
sex (male), age (over 40), and in reprisal for prior EEO activity when
appellant was denied annual leave on March 13 and March 14, 1997.
The agency accepted the above-stated allegation on June 11, 1997.<1>
The investigator sent appellant's attorney two requests for an affidavit,
dated June 18, 1997, and January 7, 1998. The requests were received by
appellant's attorney on June 21, 1997, and January 14, 1998, respectively.
Both letters informed appellant that his failure to respond within
15 days could result in dismissal of his complaint, but appellant
never responded to either request. Consequently, the agency dismissed
appellant's complaint pursuant to EEOC Regulation 29 C.F.R. �1614.107(g),
for failure to prosecute his complaint.
The record reveals that the agency requested that appellant provide an
affidavit stating general background information, i.e., what happened
on the date of the incident, who appellant believes is responsible, what
bases appellant alleges, the nature of appellant's disabilities, etc.
In appellant's Precomplaint Counseling form, dated March 25, 1997,
appellant provides a detailed description of the incidents alleged,
names a responsible agency official, and identifies his requested
remedy. The June 2, 1997 Counselor's Report, also included in the
record, specifies appellant's bases and disabilities, briefly outlines
appellant's complaint, and paraphrases the counselor's discussion with
the alleged responsible agency official.
EEOC Regulation 29 C.F.R. �1614.107(g) provides that an agency shall
dismiss a complaint, or a portion 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 Commission has stated that "it is only in cases where the
complainant has engaged in delay or contumacious conduct and the
record is insufficient to permit adjudication that the Commission has
allowed a complaint to be canceled for failure to prosecute/cooperate."
Kroeten v. United States Postal Service, EEOC Request No. 05940451
(December 22, 1994) (citation omitted)(complaint not properly dismissed
for failure to cooperate where requests were sent to appellant's former
representative and no one responded). Further, the Commission had held
that, as a general rule, an agency should not dismiss a complaint when it
has sufficient information on which to base an adjudication. See Ross
v. United States Postal Service, EEOC Request No. 05900693 (August 17,
1990)(complaint not properly dismissed for failure to cooperate where
appellant requested extension but did not respond within the applicable
time because appellant's representative was hospitalized); Brinson
v. United States Postal Service, EEOC Request No. 05900193 (April 12,
1990)(complaint not properly dismissed where appellant provided relevant
information on request, but then investigator requested an affidavit for
the same information, and appellant objected to providing the affidavit).
Additionally, although the agency usually can require a complainant to
provide an affidavit for the investigation of his complaint, dismissal
for failure to provide such an affidavit is improper where the affidavit
would not provide any new information that was not already included in
the record. See Brinson v. United States Postal Service, EEOC Request
No. 05900193 (April 12, 1990).
In Card v. United States Postal Service, EEOC Request No. 05970095 (April
23, 1998), however, the Commission found that, in limited circumstances,
a complaint may be dismissed for failure to cooperate even though
sufficient information is available to render a decision. In Card,
the complainant failed to respond to two requests for information, and
also provided no argument on appeal, although appellant was well versed
in the EEO process by having filed numerous prior complaints.
In the present case, appellant failed to respond to each of the agency's
requests, and proffers no excuse or explanation on appeal. Further,
appellant currently has four (4) other cases pending with the Commission
on appeal from agency decisions dismissing appellant's complaints for
failure to prosecute.<2> In each case, the agency made two requests
for an affidavit, but appellant failed to respond to the agency's
inquiries, and also failed to proffer any explanation on appeal.
In all, appellant has proffered no response to ten (10) requests for
information, and on appeal has proffered no explanation for his failures.
Although the information solicited in the requested affidavit was the
same clarifying information previously provided in appellant's informal
and formal complaints, or otherwise included in the record, appellant's
complete failure to provide any response to 10 requests for information
in 5 different cases warrants dismissal of the present complaint for
failure to cooperate. See Card v. United States Postal Service, EEOC
Request 05970095 (April 23, 1998); see also Bergkamp v. Department of
Veteran's Affairs, EEOC Appeal No. 01941174 (June 2, 1994) (appellant's
refusal to respond to telephone calls from an investigator, failure to
attend a face-to-face meeting, and refusal to provide a preliminary
affidavit when requested by letter constituted contumacious conduct
that justified dismissal for failure to cooperate). Accordingly, the
agency's decision to dismiss appellant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
May 24, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The agency also dismissed two allegations on June 11, 1997, neither of
which are the subject of appellant's present appeal.
2The other appeals pending with the Commission are EEOC Appeal
Nos. 01983559, 01983568, 01983621, and 01983622.