01985874
03-22-2000
Stacy Reichert, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Stacy Reichert v. United States Postal Service
01985874
March 22, 2000
Stacy Reichert, )
Complainant, )
)
v. ) Appeal No. 01985874
William J. Henderson, ) Agency No. 1F-933-0003-98
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On July 23, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dated July 1, 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> In her complaint, complainant alleged that she was subjected
to discrimination on the bases of sex (female) and in reprisal for prior
EEO activity when:
On September 5, 1997, complainant learned that she had been misinformed
by the supervisor regarding update of the Promotion Eligibility Register
(PER), and
On September 23, 1997, complainant was verbally awarded the position of
Maintenance Support Clerk, and then removed from the position because it
was awarded to a co-worker as a result of a union grievance settlement.
Complainant's complaint was accepted for investigation, and on February
18, 1998, an affidavit request was sent by Certified Mail to complainant.
The request, received by complainant on February 21, 1998, notified
complainant that she had fifteen (15) days to respond. The record
contains a copy of the agency's affidavit questions, which included
information pertaining to: complainant's position at the time of the
complaint; her prior EEO activity, what type of discrimination complainant
was alleging; the name of the person who informed complainant that she
had been awarded the position; and whether a grievance had been filed on
this issue. In response to the agency's letter, complainant requested
an extension of time to file the affidavit and asked that additional
issues be added to the investigation. On May 18, 1998, the agency sent
complainant a letter which informed her that the issues she wanted to
add could be cited in her affidavit as relevant background. The record
shows that the May 18, 1998 letter which was received by complainant
on May 22, 1998, reminded her that she must return her affidavit within
fifteen (15) calendar days. On May 19, 1998, the complainant was sent
another request for an affidavit, again with a reminder that failure to
provide the requested information within fifteen (15) days of receipt
of the letter could result in dismissal of her complaint.<2>
The agency dismissed complainant's complaint for failure to prosecute.
Specifically, the agency claims that despite three warnings that
her complaint would be dismissed if she did not provide the requested
information, complainant failed to submit an affidavit with the relevant
information.
On appeal, complainant contends that she was unable to provide an
affidavit due to her inability to receive requested information from
management. Also, complainant includes a copy of a June 4, 1998 letter
sent to the local EEO Office in which she requested an extension of the
time allotted for responding to the affidavit request due to her failure
to obtain relevant information from the agency.
Volume 64 Fed. Reg. 37, 644, 37, 656 (1999) (to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(7)) requires an
agency to dismiss a complaint or portion of a complaint for failure to
cooperate where the agency has provided the complainant with a written
request to provide relevant information and the complainant has failed
to respond to the request within fifteen (15) calendar days of receipt,
or the complainant's response does not address the agency's request.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
An agency's decision to invoke the provisions of 29 C.F.R. �
1614.107(a)(7) should be made only when there is a clear record
of delay or contumacious conduct by the complainant. See Connolly
v. Papachristid Shipping Ltd., et al., 504 F.2d 917 (5th Cir. 1974).
Further, the Commission has held, as a general rule, that 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).
In the present case, we find that the agency improperly dismissed
complainant's complaint. The Commission finds that the agency had
sufficient information to continue processing complainant's complaint even
though she failed to submit an affidavit. The complainant's complaint,
request for EEO counseling, and the counselor's report clearly identify
that she is alleging discrimination on the bases of sex (female) and in
reprisal for prior EEO activity. Complainant identifies October 31,
1996, as the date of her prior EEO activity and includes the previous
case number (Agency No. F-0407-97). Also, complainant clearly identifies
the supervisor she is claiming engaged in the prohibited activity and
includes a detailed description of her allegations, including the posting
of the PER on September 11, 1997, and her supervisor's verbal assurances
regarding the Maintenance Support Clerk position. Complainant also stated
that she filed a union grievance on this issue and on appeal provided
the grievance number (98-106-TC). Therefore, we find that the agency
erred by dismissing complainant's complaint for failure to prosecute.
Accordingly, the Commission REVERSES the agency's dismissal of
complainant's complaint and REMANDS the complaint for processing in
accordance with 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 (M0300)
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); 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 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:
March 22, 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
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.
2The record shows that complainant received this affidavit request on
May 20, 1998.