01990995
11-19-1999
Rita Rhea-Perry, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Rita Rhea-Perry, )
Complainant, )
)
v. ) Appeal No. 01990995
) Agency No. 4F-900-0102-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning 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.<1> The agency was unable to supply a copy
of a certified mail return receipt or any other material capable
of establishing the date complainant received the agency's July 10,
1998 final decision. The record contains a copy of a letter to the
Commission from complainant's representative dated August 10, 1998 in
response to the agency's final decision. Accordingly, since the agency
failed to submit evidence of the date complainant received the agency's
final decision, the Commission presumes that complainant's appeal,
dated August 10, 1998, was filed within thirty (30) days of receipt of
the agency's final decision. See, 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at and hereinafter referred to as 29 C.F.R. �1614.402)).
Complainant contacted an EEO counselor on February 25, 1998, regarding
claims of discrimination. Specifically, complainant alleged that she
was discriminated against when on February 25, 1998 she was forced
to work overtime in unsafe working conditions. Complainant alleges
further that she was harassed by her supervisors while delivering mail.
Informal efforts to resolve complainant's concerns were unsuccessful.
On March 29, 1998, complainant filed a formal complaint alleging that
she was the victim of unlawful employment discrimination on the basis
of reprisal.
On July 10, 1998, the agency issued a final decision dismissing
complainant's complaint for failure to cooperate. Specifically, the
agency determined that complainant failed to respond to its repeated
requests for additional information to aid in the processing of her
complaint. The agency dismissed complainant's complaint pursuant to
64 Fed. Reg. 37,644, 37,656 (1999)(to be codified at and hereinafter
referred to as 29 C.F.R. �1614.107(a))7).
EEOC Regulation 29 C.F.R. �1614.107(a)(7) provides for the dismissal
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 regulation further provides that,
instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
We find that the agency's dismissal was improper. The record indicates
that on April 30, 1998 and again on May 13, 1998, complainant received
a memorandum from the agency requesting that she furnish an affidavit
regarding her complaint claims. The memorandum also indicated that
failure to respond to the agency's request within 15 days would result
in dismissal of her complaint. The agency determined that complainant
failed to furnish her affidavit within the requisite time frame, and
that therefore her complaint should be dismissed for failure to cooperate.
On appeal, the agency claims that complainant's affidavit was necessary
for further processing of the complaint. The agency contends that
complainant did not describe the unsafe conditions she alleges she was
forced to work under. Moreover, the agency argues that complainant
does not indicate how she was harassed. We are not persuaded by the
agency's contentions. A review of complainant's complaint indicates that
complainant clearly alleges that she was forced to deliver mail in the
dark and that her supervisors �tailgated and cut [her] off while [she]
delivered mail. . . .� Moreover, we note that complainant's complaint,
along with the EEO Counselor's Report, addressed the incident of alleged
discrimination, with reference to the responsible agency officials by
name, the basis on which she alleged discrimination, and the corrective
action sought. We therefore determine that the agency's dismissal
of complainant's complaint for failure to cooperate was improper.
Accordingly, the agency's decision to dismiss complainant's complaint
is hereby REVERSED. The complaint is REMANDED to the agency for further
processing in accordance with this decision and the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded claims in accordance with
29 C.F.R. �1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights 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. 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
at 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 at 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. 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:
November 19, 1999
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:
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.