0120080341
05-22-2009
Pamela Atherstone, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Pamela Atherstone,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080341
Agency No. Not Provided
DECISION
Complainant filed an appeal with this Commission from the agency's
letter dated October 2, 2007, which closed her request for EEO
Counseling concerning unlawful employment discrimination in violation
of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. 1 Upon review, the Commission finds
that complainant's complaint was improperly dismissed for "failure
to proceed."
The record discloses that complainant requested EEO Counseling on
September 12, 2007.2 The agency received her request, and forwarded to
her on September 12, 2007, an information packet entitled "Information for
Pre-complaint Counseling." Complainant was to use this form to provide the
basic information necessary for the agency to initiate the EEO process.
In the accompanying packet, complainant was informed that failure to
complete and return the forms within ten (10) calendar days from receipt
might result in the closing of her EEO contact for failure to proceed.
Complainant did not receive this packet until she returned from her
vacation on September 23, 2007. Complainant mailed the completed packet
back to the agency on September 28, 2007. On October 2, 2007, the agency
issued a letter closing complainant's request for counseling because
it had not received the requested documentation within the specified
10-day period.
On appeal, complainant contends that the delay was not significant.
She maintains the agency's leave records support the fact that she was
on vacation status during this period and as such, was unable to reply
within the agency's 10-day time period.
Based on a review of the record, the Commission finds that complainant
has presented a persuasive argument or evidence warranting an extension
of the time limit.
In addition, EEOC's regulation found at 29 C.F.R. � 1614.107(a)(7)
provides that prior to a request for a hearing in a case, the agency shall
dismiss an entire complaint where the agency has provided complainant
with a written request to provide relevant information or otherwise
proceed with the complaint, and complainant has failed to respond to the
request within 15 days of its receipt or 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 mat, instead
of dismissing for failure to cooperate, the complaint may be adjudicated
if sufficient information for that purpose is available. Generally, the
Commission has held that an agency should not dismiss a complaint when it
has sufficient information upon which to base an adjudication. See Ross
v. United States Postal Service, EEOC. Request No. 05900693 (August 17,
1990); Brinson v. United States Postal Service, EEOC Request No. 05900193
(April 12, 1990). 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 as allowed a complaint to be dismissed
for failure to cooperate. See Card v. United States Postal Service,
EEOC Request No. 05970095 (April 23, 1998); Kroeten v. United States
Postal Service, EEOC Request No. 05940451 (Dec. 22, 1994).
The Commission finds that complainant's failure to timely respond to the
requested information did not establish that complainant engaged in delay
or contumacious conduct sufficient to warrant dismissal of the complaint.
Accordingly, we find that the agency improperly dismissed the complaint
for failure to proceed. Therefore, we reverse the agency's dismissal
of complainant's counseling request and remand the case to the agency
for further processing.
ORDER
The agency is ordered to process complainant's request for counseling
pursuant to 29 C.F.R. � 1616.105 within forty-five (45) days. The agency
shall acknowledge to complainant that it has received the remanded
claim within fifteen (15) calendar days of the date this decision
becomes final.
A copy of the agency's letter of acknowledgment to complainant must be
sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
05/22/09
__________________
Date
1 We exercise our discretion to treat this matter as a de-facto dismissal
of the complaint of discrimination.
2 Complainant contends that based on her disability and in reprisal
for prior EEO activity she was denied a reasonable accommodation.
??
??
??
??
2
0120080341
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120080341