Traine D. Smith, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 14, 2000
01995898 (E.E.O.C. Jan. 14, 2000)

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.