Thomas E. Allen, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 7, 2009
0120082920 (E.E.O.C. Dec. 7, 2009)

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