0120082920
12-07-2009
Thomas E. Allen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomas E. Allen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120082920
Agency No. 4J-481-0083-07
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated February 11, 2008, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. For the reasons that follow, the Commission AFFIRMS the
agency's dismissal of the complaint.
BACKGROUND
At the time of his complaint, complainant worked in a modified position
as an Automotive Technician at the agency's Vehicle Maintenance Facility
in Detroit, Michigan, with medical restrictions in lifting and bending,
because of an injury in April 2000. Complainant contacted an EEO
counselor on April 10, 2007, and filed his formal complaint on May 19,
2007. He alleged that, since October 20, 2006, he has been harassed and
subjected to a hostile work environment and discrimination on the basis of
disability (lower back injury) when: (a) he was ordered to work outside
of his restrictions; (b) he was denied a reasonable accommodation when
his overtime was cut, and his driving privileges were restricted; (c)
his job was threatened; (d) he was not afforded training opportunities;
(e) he was put on public display for ridicule and humiliation and isolated
from others; and (f) the agency did not take action when complainant
reported being called names and garbage was thrown at him.
The agency dismissed his complaint on June 1, 2007, stating that some of
the actions complained of were addressed in a prior complaint (Agency
No. 4J-481-0022-07) and that other events described were untimely
brought to the attention of an EEO counselor. See 29 C.F.R. ��
1614.107(a)(1)-(2). On appeal, the Commission affirmed the agency's
dismissal of the complaint insofar as it dealt with incidents occurring
prior to December 13, 2006, the date on which the parties entered into a
settlement agreement of Agency Case No. 4J-810-0033-07, which contained
allegations similar to, but not identical with, the claims raised in
the complaint at bar. Thomas E. Allen v. United States Postal Service,
EEOC Appeal No. 0120073135 (December 20, 2007). With regard to incidents
occurring after December 13, 2006, the Commission reversed the dismissal
and remanded the claims back to the agency, ordering the agency to
"acknowledge to the complainant that it has received the remanded claim
.... Upon receipt of said notice from the agency, complainant shall
have thirty (30) calendar days to submit to the agency an addendum to
the Formal Complaint providing specific dates for each of the incidents
alleged in the Formal Complaint." Id.
On January 3, 2008, the agency sent complainant acknowledgement of
the remanded complaint and advised him that he must respond within
30 days from his receipt thereof and provide additional information
for his formal complaint, identifying the "specific dates for each of
the incidents alleged." Id.; see Agency's Acknowledgement of Receipt
of Remanded Complaint. The Acknowledgement further advised complainant
that if he failed to respond within 30 days of his receipt of the letter,
his complaint could be dismissed. Id. The record shows, and complainant
confirmed, that he received the agency's Acknowledgement on January 5,
2008. Complainant's response was required to be postmarked on or before
February 4, 2008. The agency did not receive the information requested,
and, after an additional week, it dismissed the complaint on February
11, 2008, for failure to proceed and prosecute his formal complaint.
See 29 C.F.R. � 1614.107(a)(7).
CONTENTIONS ON APPEAL1
Complainant sent two letters to the agency dated in February 2008. In the
first letter, dated February 5, complainant asserted that he contacted
a named EEOC Administrative Judge (AJ) in the EEOC Indianapolis District
Office and "requested a motion to consolidate [his three open complaint]
cases," i.e., Nos. 4J-481-0083-07, 4J-481-0022-07 and 4J-481-0098-07.
He asked that the agency provide the AJ with information and documents
on each matter. In his Certificate of Service, he titled this letter
"Motion for Consolidation." The second letter, dated February 25, stated
complainant's objection to the agency's dismissal of his complaint and
his disagreement with its conclusion that he was untimely. In this
letter, sent to the agency and the CO, he contended that, (i) because
his representative did not receive the agency's letter until January 7,
2008, the agency should mark the time period from that event and that
he mailed his response to the agency on February 5, 2008, which was 29
days after his representative received the letter; (ii) he reiterated
his contact with the AJ regarding consolidation of his three cases;
(iii) as to the information requested by the agency "that included
dates and times of my complaints again," complainant contended that
he had already sent the information many times and that this request
was "all stall tactics;" and (iv) that he had received correspondence
addressed to him but in regard to a different individual. Finally,
in response to EEOC's acknowledgement of his appeal, he sent a letter,
with attachments, about his three complaints, mentioning his putative
motion, and asserting that the conversation with the AJ held off his
response to the agency on February 5, 2008, 29 days from the date his
representative received the agency's notice.
The agency's comments described the events leading to this appeal,
including receipt of complainant's letter dated February 5, 2008,
informing that agency that he had requested an AJ to consolidate the
instant matter with two other open complaints. The agency noted that
complainant's representative was not an attorney, and his receipt of
the agency's letter was not relevant to determine the time period for
response. In addition, the agency contended that, while it had received
complainant's letter dated February 5, 2008, it was not responsive to
the January 3, 2008, request for information. The agency urged that the
Commission affirm its dismissal of the remanded complaint, stating that
its action was consistent with EEOC's regulations and federal sector
case law.
ANALYSIS AND FINDINGS
Standard of Review
The standard of review in rendering this appellate decision is de novo,
i.e., the Commission will examine the record and review the documents,
statements, and testimony of record, including any timely and relevant
submissions of the parties, and issue its decision based on the
Commission's own assessment of the record and its interpretation of
the law. See 29 C.F.R. � 1614.405(a); EEOC Management Directive 110,
Chapter 9, � VI.A. (November 9, 1999).
Dismissal of Complaint
In the Commission's Order in EEOC Appeal No. 0120073689, we directed the
agency to acknowledge the remanded complaint and provide complainant 30
calendar days from his receipt to supplement his complaint. In its notice
to complainant, he was advised that failure to respond to the agency
may result in dismissal of the complaint. Complainant did not provide
information responsive to the agency's letter or the Commission's Order.
The information was due on or before February 4, 2008, and the record does
not reflect that complainant ever provided the specific information that
the agency sought and that the Commission's Order required. Having not
received a responsive answer, the agency dismissed the remanded complaint
on February 11, 2008, pursuant to the Commission's Regulation 29 C.F.R. �
1614.107(a)(7). The record shows that complainant did not respond to
the agency within 30 days of his receipt of the January 3, 2008 letter
and that he did not address or provide the information requested by the
agency and as directed by the Commission.
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides that an agency, after
providing the complainant with a written request to provide information
and not receiving a response or one that does not address the agency's
request, may dismiss a complaint, if it lacks sufficient information to
decide the matter and has advised complaint that a failure to respond may
result in dismissal. In this matter, we find that the agency properly
applied our regulations when it dismissed the remanded complaint, because
complainant failed to supply information responsive to its January 3,
2008, letter, requesting that he provide an addendum to his complaint
to "by providing the specific dates for each of the incidents alleged
in the Formal Complaint," as directed by the Commission. See Order,
EEOC Appeal No. 0120073689.
Complainant's argument on appeal that, because his representative
received the agency's letter on January 7, 2008, the 30-day period must
start from that date, is incorrect. The time period began upon receipt
by complainant and not his representative, as that such deference
is only accorded to a lawyer representing a complainant.2 See 29
C.F.R. � 1614.402(b); 29 C.F.R. � 1614.605(d). Also, the Commission's
regulations give notice to all complainants that he or she is "at all
times responsible for proceeding with the complaint whether or not
he or she has designated a representative." 29 C.F.R. � 1614.605(f).
Thus, regardless of his representative's receipt, the time period for
complainant's response began the day after his receipt, was due on
or before February 4, 2008, and, at all times, complainant bore full
responsibility for his complaint. Id.; see 29 C.F.R. � 1614.604(d).
Complainant also asserted that on January 30, 2008, he spoke with an
AJ assigned to Agency No. 4J-481-0098-07, seeking consolidation of
that complaint with two other complaints, Agency Nos. 4J-481-0083-07
and 4J-481-0022-07 and that the AJ agreed to consider his request.
We find this conversation doubtful in light of the EEO process and
an AJ's jurisdiction and responsibilities. In the first instance,
the Commission's records, both appeals and hearings, do not recognize
Agency No. 4J-481-0098-07, and complainant did not identify a hearing
number associated with this complaint number. We note that Agency
No. 4J-481-0022-07, alleging a breach of a settlement agreement,
was resolved by the Commission on December 20, 2007 in EEOC Appeal
No. 0120073135, and Agency No. 4J-481-0083-07 is the matter before
us herein. Thus, neither complaint was available for consolidation
by the AJ with Agency No. 4J-481-0098-07. See 29 C.F.R. � 1614.606.
Finally, to the extent complainant argues that the putative Motion
was justifiable grounds for delaying his response to the agency, he is
mistaken. The agency's letter and the Commission's Order required him
to provide specific dates for the events alleged, and the information
previously provided by complainant does not do so.
CONCLUSION
After a review of the record in its entirety, including the record
in EEOC Appeal No. 0120073689, and consideration of all statements
submitted on appeal, including those not specifically addressed, it is
the decision of the Equal Employment Opportunity Commission to affirm the
agency's final action dismissing the remanded complaint. Accordingly,
the agency's decision is AFFIRMED.
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 (S0408)
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. 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. If you
file a request to reconsider and also file a civil action, 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
December 7, 2009
Date
1 Complainant sent the instant appeal on or about February 25, 2008, to
the EEOC Compliance Officer (CO) assigned to monitor the Commission's
Order in EEOC Appeal No. 0120073689. The CO forwarded the appeal
for filing on May 28, 2008, and the Commission accepted it as filed
on March 3, 2008, in an acknowledgement dated June 25, 2008. We will
consider complainant's appeal, his comments on appeal, and the agency's
letter-response as timely filed.
2 The Commission's regulations consider an attorney to be a member of the
Bar, the official organization of each state that authorizes individuals
to practice law. See, e.g., 29 C.F.R. � 1614.501(e)(iii).
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0120082920
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082920