01990954
02-03-2000
Rhonda K. Kisting, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Rhonda K. Kisting, )
Complainant, )
)
v. ) Appeal No. 01990954
) Agency No. 1-I-536-1005-94
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On November 10, 1998, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) dated October 9, 1998,
pertaining to 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., the Age Discrimination in Employment Act of
1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> In her
complaint, complainant alleged that she was subjected to discrimination on
the bases of sex (female), age, physical disability (on-the-job injury),
and mental disability (bipolar disorder) when her temporary appointment
as a transitional letter carrier expired on September 25, 1993, and was
not renewed.
The agency dismissed the claim because complainant could not be located
despite reasonable efforts to find her. Specifically, the agency
explained that after the complaint was accepted for investigation,
an EEOC Administrative Judge (AJ) was assigned to conduct a hearing.
According to the agency, the AJ was unable to reach complainant for a
telephonic prehearing conference. The agency further elaborated that
complainant again was not reachable when the conference was rescheduled
for a later date, and the prehearing conference was canceled.
The record includes a copy of the Counselor's Report, the formal complaint
dated February 15, 1994, the notice of acceptance dated August 29,
1994, the investigative report, complainant's request for a hearing
dated December 31, 1996, and a letter from the AJ, dated March 7, 1997.
In the letter, the AJ detailed his inability to contact complainant via
telephone for the prehearing conference. The AJ also stated that he
received several letters from complainant asking to delay the hearing,
and a telephone call requesting that her hearing be canceled. The AJ
rescheduled the prehearing conference for March 7, 1997, but complainant
sent a fax on March 6 stating that she could not attend. The AJ remanded
the complaint to the agency.
The record does not include a letter to complainant's last address of
record proposing to dismiss the complaint.
EEOC Regulations allow the agency to dismiss a complaint when the
complainant cannot be located. See 64 Fed. Reg. 37,644, 37,656 (1999)
(to be codified and hereinafter cited as 29 C.F.R. �1614.107(a)(6).
But dismissal on these grounds is restricted to situations in which
the agency made reasonable efforts to locate the complainant, and the
complainant failed to respond within fifteen days to a notice of proposed
dismissal sent to the complainant's last known address. Id.
In the present case, the agency never gave complainant an opportunity
to respond to a proposed dismissal. Further, in similar situations,
the Commission has found that while complainant may have forfeited her
opportunity to a hearing with an EEOC AJ by failing to cooperate, the
agency must issue a final decision on the merits of the complaint when
the record is sufficiently complete for the agency to render a decision.
See Ray v. United States Postal Service, EEOC Request No. 05931086
(June 30, 1994); McCants v. United States Postal Service, EEOC Appeal
No. 01982965 (Apr. 5, 1999). Therefore, while it appears that complainant
failed to cooperate in the processing of her complaint at the hearing
stage, we find that this failure, at this juncture, warrants forfeiture
of a hearing, not dismissal of her complaint; however, complainant is
advised that both parties are expected to cooperate in the processing
of all EEO complaints.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and the claim is REMANDED
for a final decision on the merits of the complaint.
ORDER
The agency is ORDERED to determine whether complainant has been
discriminated against based on the investigative report, formal complaint,
counselor's report, and other information contained in the file.
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall issue a final decision on the merits of complainant's
claim and inform complainant of all applicable appeal rights.
A copy of the final decision must be sent to the Compliance Officer as
referenced below.
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 (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R1199)
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:
February 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 Equal Employment Assistant 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.