01982507
05-26-1999
Ron L. Stancil, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency
Ron L. Stancil v. United States Postal Service
01982507
May 26, 1999
Ron L. Stancil, )
Appellant, )
) Appeal No. 01982507
v. ) Agency No. 1H-321-0065-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning 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 final agency decision was dated January
27, 1998, and received by appellant on February 3, 1998. The appeal
was postmarked on February 9, 1998. Accordingly, the appeal is timely
(see 29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC
Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to cooperate.
BACKGROUND
Appellant filed a formal complaint on June 27, 1997, alleging
discrimination on the basis of reprisal (prior EEO activity) when, on
April 3, 1997, he was issued a Letter of Warning. In its final agency
decision, the agency dismissed the complaint for failure to cooperate
with the agency's investigation. This appeal followed.
The agency sent two letters to the appellant asking him to provide
an investigative affidavit with more details regarding his complaint.
Letter #1, dated August 8, 1997, was sent by certified mail, and was
received by appellant on August 18, 1997. Letter #2, dated October 27,
1997, was also sent by certified mail, and was received by appellant
on October 28, 1997. Each letter clearly stated that appellant needed
to respond within fifteen (15) days, and that failure to do so could
result in the closing of his case. Appellant failed to respond to either
letter.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(g) provides that the agency shall
dismiss a complaint or a portion of a complaint when 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,
provided that the request included a notice of the proposed dismissal.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information is available for that purpose.
The Commission previously has held that the above regulation is applicable
"only in cases where there is a clear record of delay or contumacious
conduct by the complainant." See Anderson v. U.S. Postal Service,
EEOC Request No. 05940850 (February 24, 1995).
The record in this case shows that the agency issued two letters to the
appellant requesting further information, and that appellant received
each letter and failed to respond. Both letters clearly stated that a
failure to respond could result in a dismissal of appellant's case.
We find that the agency could have continued the investigation and issued
a final decision on the merits of appellant's complaint even absent the
additional information requested from the appellant. The letters to the
appellant requested the following information: what happened on April 3,
1997; who was responsible; the basis for the discrimination; if appellant
had participated in prior EEO activities and if so, in what capacity
and when; was the manager aware of his prior EEO activity and how; what
lead to the issuance of the Letter of Warning; was he aware of others
who were treated differently under similar circumstances, if so, who,
and how were they treated differently; what resolution did he seek; and
what other information could he provide that would be relevant. Much of
the information requested was already contained in appellant's request
for counseling, his formal complaint and the EEO Counselor's report.
Those documents set forth appellant's allegation that he was issued
a Letter of Warning on April 3, 1997, by his supervisor for engaging
in prior EEO activity. The Counselor's report has the agency numbers
of appellant's previous EEO cases. The Counselor's report also states
that the supervisor told the Counselor that the Letter of Warning was
issued because appellant was given a direct order and failed to follow
instructions. The resolution sought by appellant was that he wanted
the Letter of Warning to be removed from his record. Other information
not contained in those sources could have been obtained in other ways,
such as interviewing the supervisor, obtaining copies of appellant's
prior EEO case files and obtaining records of discipline issued in
that postal facility. We therefore conclude that the agency improperly
dismissed appellant's complaint for failure to cooperate.
Accordingly, the decision of the agency is REVERSED and REMANDED for
further processing in accordance with this decision and the proper
regulations.
ORDER
The agency is ORDERED to reinstate the remanded allegation at the point
processing ceased, in accordance with 29 C.F.R. �1614.108. The agency
shall acknowledge to the appellant that it has received the remanded
allegation within thirty (30) calendar days of the date this decision
becomes final. The agency shall issue to appellant a copy of the
investigative file and also shall notify appellant 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 appellant requests a final decision without a hearing,
the agency shall issue a final decision within sixty (60) days of receipt
of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (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:
May 26, 1999
______________ ______________________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations