0120092241
08-03-2009
Robert L. Mcghee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert L. Mcghee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092241
Agency No. 4J-606-0039-09
DECISION
Complainant filed an appeal with this Commission from the final agency
decision, dated March 16, 2009, dismissing his formal complaint of
unlawful employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. �
1614.405.
On December 29, 2008, complainant filed a formal complaint based on age
and in reprisal for prior protected activity. Complainant alleged that
he was discriminated against when:
On October 20, 2008 a portion of his route was taken away, resulting in
a loss of overtime.
On March 16, 2009, the agency issued the instant final decision.
Therein, the agency dismissed the formal complaint for failure to
cooperate, pursuant to 29 C.F.R. � 1614.107(a)(7). The agency stated
that on January 26, 2009 complainant was sent an affidavit package
by the EEO investigator. The documents notified complainant that his
completed affidavit had to be returned and postmarked within fifteen days
of receipt of the package. Further, complainant was cautioned that a
failure to respond could result in the dismissal of his formal complaint.
According to the agency, a "Track and Confirm" report indicated that the
package was delivered to complainant's address of record on January 28,
2009. Complainant did not submit a response. Finding that complainant
failed to cooperate, and there was insufficient information in the record,
the agency dismissed the complaint.
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 fifteen 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. 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).
Complainant's failure to timely respond to the above referenced
request for information did not establish that complainant engaged in
delay or contumacious conduct sufficient to warrant dismissal of the
complaint. There is no evidence in the record to show that the agency
ever made any attempt to follow up on its first request, before summarily
dismissing the formal complaint. Therefore, we find that the agency
improperly dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(7)
for failure to cooperate. Complainant, however, is advised to cooperate
in the processing of the instant complaint or possibly face future
dismissal of the complaint for failure to do so.
For the reasons set forth above, we REVERSE the agency's dismissal
decision and REMAND the case to the agency to issue a decision on the
merits of the case, as more fully set forth in the ORDER below.
ORDER (E0408)
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 (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
August 3, 2009
__________________
Date
2
0120092241
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092241