01A15193_r
05-10-2002
Sandra M. Neel, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sandra M. Neel v. United States Postal Service
01A15193
May 10, 2002
.
Sandra M. Neel,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A15193
Agency No. 4F-950-0068-01
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision (FAD) dated August 7, 2001, dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
The EEO Counselor's Report indicates that complainant raised the
following claims during the pre-complaint process: (a) management
improperly denied a schedule change; (b) management compelled her to
pursue the grievance process to keep her lunch at the end of her route;
and (c) management issued her a Letter of Warning. Informal efforts to
resolve complainant's concerns were unsuccessful.
On April 12, 2001, complainant filed a formal complaint, alleging
discrimination on the bases of sex and age. Therein, complainant made
the following claim:
I do not feel that a full and fair investigation was done.
My comparatives . . . were never interviewed, nor was I interviewed.
The only person interviewed was management.
Pursuant to 29 C.F.R. �1614.107(a)(7), the agency dismissed the complaint
on the grounds that complainant failed to prosecute her claims and
failed to respond to the agency's request for additional information
after complainant filed her formal complaint. The agency's grounds for
dismissal were exclusively based on failure to prosecute. However, in
a footnote, the agency noted that two matters for which complainant
sought counseling were not timely raised with an EEO Counselor.
The agency declined to dismiss the claims on these grounds, noting that
because complainant did not raise the issues for which she underwent EEO
counseling in her formal complaint, she had abandoned all claims raised
during EEO counseling.
The record in this case contains a May 24, 2001 request for additional
information regarding the matters for which complainant had undergone EEO
counseling, received by complainant's attorney of record on May 29, 2001.
Therein, complainant was requested to identify the parties that were
the subject of the investigation as identified in her formal complaint.
Complainant was informed that the failure to respond within fifteen days
of receipt of the letter could result in dismissal of the complaint.
On appeal, complainant argues that she intended her formal complaint to
be a response to what she believed to be the full extent of the agency's
investigation of her pre-complaint claims. Complainant states that she
was not aware that she had to restate the claims she had already set forth
in her EEO Request for Counseling. Complainant notes that the agency
acknowledged receipt of the EEO Counselor's report, and thus the agency
was aware of complainant's pre-complaint claims prior to issuing the FAD.
The regulation set forth at 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.
The Commission has held that as a general rule, an agency should not
dismiss a complaint when it has sufficient information on 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 has
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
(December 22, 1994). Therefore, under the circumstances, we find that
the agency's dismissal of complainant's complaint for failure to cooperate
was improper.
Under the circumstances in this case, we find that the agency's dismissal
was improper. The record confirms that complainant received the agency's
May 24, 2001 request for additional information following the filing of
her formal complaint, expressing the agency's confusion at her failure
to include the claims previously raised and indicating that failure
to do so within 15 days would result in dismissal of her complaint.
We note, however, that complainant determined that she was �not aware
that she had to restate the issue which she had already stated in her EEO
Request for Counseling.� Accordingly, the agency's decision to dismiss
the complaint for failure to prosecute is REVERSED. The complaint is
REMANDED to the agency for further processing in accordance with the
ORDER below. The Commission advises complainant, however, to fully
cooperate with the agency in the further processing of her complaint,
including providing information necessary to clarify her claims, or face
possible future dismissal of her complaint.
Although we reverse the agency's decision on the grounds stated here,
we make no determination regarding whether any of the matters for which
complainant has undergone EEO counseling have been timely raised with
an EEO Counselor.
ORDER (E0900)
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 (K0501)
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 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 (M0701)
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 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 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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 10, 2002
__________________
Date