01985486
02-07-2000
Shelia Wiley, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Shelia Wiley v. United States Postal Service
01985486
February 7, 2000
Shelia Wiley, )
Complainant, )
)
v. ) Appeal No. 01985486
William J. Henderson, ) Agency No. 1G771015297
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On June 22, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dated May 4, 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. <1> Because the agency failed to submit a copy of the certified
receipt, or any evidence, indicating the date complainant received the
final agency decision, the Commission will exercise its discretion and
accept complainant's appeal as timely. See 64 Fed. Reg. 37, 644, 37,
656 (1999)(to be codified as 29 C.F.R. � 1614.402(a)). In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of race (Black) and sex (female) when:
On June 27, 1997, management falsified complainant's work hours by
not charging complainant sick leave in pay period fourteen and paying
complainant eight hours of overtime in pay period fifteen for time she
did not work.
The agency dismissed complainant's complaint on the grounds that
complainant failed to cooperate in the administrative investigation.
Specifically, the agency claimed that it mailed complainant an affidavit
to complete via certified mail on March 4, 1998. The agency stated
that complainant received the request on March 9, 1998, and did not
respond to the request. The agency claimed that it mailed a second
request on March 27, 1998, which was returned as "unclaimed" after three
attempts were made to reach complainant. Therefore, the agency found
that complainant's complaint should be dismissed on the grounds that
complainant failed to cooperate with the agency.
Following the agency's final decision, complainant filed the present
appeal.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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.
Under the circumstances in this case, we find that the agency's
dismissal was improper. The agency notes in its final decision that,
by letter dated March 4, 1998, it requested that complainant provide
clarifying information relating to her complaint. The record, however,
contains no copy of a certified mail return receipt of any other material
capable of establishing that complainant received the agency's letter
dated March 4, 1998. Indeed, the record does not contain either of
the notices purportedly sent to complainant. Clearly it is the burden
of the agency to have evidence or proof to support its final decision.
Marshall v. Department of the Navy, EEOC Request No. 05910585 (September
6, 1991). Absent evidence that complainant was on notice to provide
certain information or face the possible dismissal of her complaint,
we find that the record does not support the agency's dismissal of
complainant's complaint for failure to prosecute.
Further, according to the agency, complainant failed to furnish
the requested affidavit within the requisite time frame. We note,
however, that the agency failed to show why complainant's affidavit was
necessary for the further processing of the complaint. The agency has
not claimed that the complaint was vague, and the agency found that
there was sufficient information in the record to be able to define
the complaint and accept it for investigation. 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 official by name, the bases on which she alleged discrimination,
and the corrective action sought.
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). We note that there is no evidence of contumacious conduct
in the present case. Therefore, we find 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
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 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 an
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. �
1614.503(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 7, 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.