0120090020
01-22-2009
Steven Maes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Steven Maes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090020
Agency No. 4G870003808
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's August 25, 2008 final decision concerning
his equal employment opportunity (EEO) complaint alleging 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 Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. Complainant alleged that the agency discriminated
against him on the bases of national origin (Hispanic), sex (male), and
disability (disabled veteran) when on February 15, 2008, he was issued
a letter of warning for irregular attendance.
The record reveals that the complaint was accepted for investigation.
On June 17, 2008, the EEO investigator who was assigned to conduct the
investigation forwarded questions to complainant for the purpose of
having him complete an affidavit (Affidavit Package). Records reveal
the Affidavit Package was sent via Priority Mail Delivery Confirmation
No. 0307 1790 0005 5717 6879. A review of the USPS Track and Confirm
System indicates that Delivery Confirmation No. 0307 1790 0005 5717
6879 was delivered to complainant's address of record on June 20, 2008.1
Complainant did not respond to the request in the Affidavit Package or
otherwise provide additional information. No additional efforts were made
to contact complainant. Following the completion of the investigation,
the agency dismissed complainant's claims for failing to cooperate in
accordance with 29 C.F.R. �1614.107(a)(7).
On appeal, complainant asserts that he did not receive the Affidavit
Package and claims that the agency's delivery confirmation system
is flawed. Under the circumstances in this case, we find that the
agency's dismissal was improper. We find that the agency failed to show
why complainant's affidavit was necessary for the further processing of
the complaint. The agency does not claim that the complaint is vague.
In fact, 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 incidents of alleged discrimination with
reference to the responsible agency official by name, the bases on which
he alleged discrimination, and the corrective action sought. The record
reflects that the EEO investigator had completed the investigation with
the exception of complainant's affidavit, and had obtained affidavits
from the responsible management officials, and the relevant documents.
The Commission has held that as a general rule, an agency should not
dismiss a complaint when it has sufficient information to adjudicate
on the merits. See Brown, Jr. v. United States Postal Service,
EEOC Appeal No. 0120082926 (September 12, 2008). EEOC Regulation 29
C.F.R. �1614.107(a)(7) provides that instead of dismissing a complaint
for failure to cooperate, the complaint may be adjudicated if sufficient
information for that purposes is available. In the instant matter,
the agency has not shown that sufficient information is not available
to adjudicate the complaint and it appears that such information
is available. Therefore, we find that the agency's dismissal of
complainant's complaint for failure to cooperate was improper.
The agency's dismissal of the complaint is REVERSED and we REMAND the
complaint to the agency for further processing in accordance with this
decision and the Order herein.
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
January 22, 2009
Date
1 The Affidavit Package included a notice to complainant that if he
failed to respond to the information requested within 15 days his
complaint may be dismissed for failure to cooperate in accordance with
29 C.F.R. � 1614.107.
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0120090020
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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