01995898
01-14-2000
Traine D. Smith, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Traine D. Smith, )
Complainant, )
)
v. ) Appeal No. 01995898
) Agency No. 4-C-190-0065-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
We find that the agency's July 8, 1999 decision dismissing the complaint
is proper pursuant to the provisions of 64 Fed. Reg. 37,644, 37,656
(1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(7).<1>
The record shows that on March 4, 1999, Complainant filed a formal
complaint of discrimination claiming that she had been discriminated
against on the bases of race, color, and sex when on December 11, 1998,
and December 30, 1998, she complained to a supervisor about an employee
who told her that she was not working hard enough unless she was picking
cotton and tying bales of hay and he laughed in her face, and a manager
told her �if I can not use you where I need you then I don't need you,
we don't run things like that here, this is not a two sided conversation
and bye�. Complainant appended to the complaint a notice of withdrawal
of �my informal EEO complaint in its entirety� for a complaint identified
by the instant agency number (4-C-190-0065-99).
By letter dated March 9, 1999, the agency asked Complainant to provide
additional information concerning her formal complaint. Complainant
was advised that her failure to provide the information within fifteen
calendar days could result in the dismissal of her complaint. Complainant
sent the agency her response on March 15, 1999. The agency thereafter
sent Complainant another letter, dated April 27, 1999, and received by
Complainant on April 28, 1999. Therein, the agency noted Complainant's
response to its prior letter of March 9, 1999. However, the agency noted
that Complainant's formal complaint had included a signed withdrawal form.
The agency requested that Complainant indicate, under such circumstances,
whether she intended to proceed with the complaint or to withdraw the
complaint. Complainant was informed that her failure to respond within
fifteen days of receipt of the letter would result in the dismissal of
the complaint for failure to prosecute.
The record shows that Complainant did not respond to the agency's April
27, 1999 request for
additional information. The agency issued a final decision on July 8,
1999, dismissing the complaint on the grounds of Complainant's failure
to cooperate.
A review of the record persuades the Commission that the final agency
decision was proper. Although Complainant filed a formal complaint,
she also signed a withdrawal form. In an effort to determine whether
Complainant intended to pursue the EEO compliant, or alternatively, to
withdraw the complaint, the agency requested clarification on this matter.
When asked by the agency to indicate whether she wished to pursue her
complaint or not, she failed to do so.
Accordingly, the final agency decision is AFFIRMED.
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 (S1199)
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 (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:
Jan. 14, 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
1 On 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.