01985038
01-19-2000
Valerie Johnson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Valerie Johnson, )
Complainant, )
)
v. ) Appeal No. 01985038
) Agency No. 1-C-441-0025-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On June 11, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dated May 13, 1998, pertaining to her
complaint of unlawful employment discrimination in violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et
seq. and Section 501 of the Rehabilitation Act of 1973, as amended, 29
U.S.C. � 791 et seq.<1> In her complaint, complainant alleged that she
was subjected to discrimination on the bases of race (African-American),
sex (male), and physical disability (back injury) when:
Since September 3, 1996, complainant was harassed due to a July 30,
1996 injury on duty; and
On September 12, 1996, complainant was issued a notice of suspension.
The claims were accepted for investigation on February 7, 1997.
Complainant received a copy of the completed Investigative Report on
October 6, 1997, and complainant subsequently requested a hearing with an
EEOC Administrative Judge (AJ). By letter dated April 27, 1998, the AJ
remanded the complaint to the agency for �appropriate action,� because
complainant failed to participate in a pre-hearing conference scheduled
for April 10, 1998, and also failed to attend a hearing scheduled for
April 23, 1998.
Upon receiving the AJ's remand, the agency dismissed the complaint for
failure to cooperate. Specifically, the agency found that complainant's
failure to appear at the pre-hearing conference or the hearing warranted
dismissal of the complaint. The agency noted that the AJ may take
appropriate action when complainant fails without good cause to fully
and timely respond to his request.
On appeal, complainant argues that she changed her address, and notified
the agency of the change. Nonetheless, complainant contends that mail
was still delivered to her old address. Complainant attached a letter
she wrote to the AJ, dated May 1, 1998. This letter informs the AJ that
the scheduling order was sent to the wrong address, and that complainant
did not receive it until May 1, 1998. The letter further notes that
complainant previously informed the agency of her change in address,
and requests that the pre-hearing conference and hearing be rescheduled.
The record does not include any notification of complainant's new address
prior to the present appeal. However, the record includes a copy of
the certified receipt card for the Investigative Report, which was sent
to the new address, and was signed by complainant on October 6, 1997.
The FAD, however, was mailed to complainant's old address, and signed
for by someone other than complainant on May 16, 1998.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(7)) provides for the dismissal of a
complaint where the agency has provided the complainant with a written
request to provide relevant information or otherwise proceed with the
complaint, and the complainant has failed to respond to the request within
15 days of its receipt or the complainant's response does not address
the agency's request, provided that the request includes a notice of the
proposed dismissal. The regulation further provides that, instead of
dismissing for failure to cooperate, the complaint may be adjudicated
if sufficient information for that purpose is available.
Under the circumstances in this case, we find that the agency's dismissal
was improper. The agency has not claimed that the complaint was vague,
nor found that there was insufficient information in the record to
adjudicate the complaint. In fact, the claim was investigated, and was
only awaiting a hearing or final agency decision on the merits.
The Commission has held that as a general rule, an agency should not
dismiss a complaint when it has sufficient information on which to base
an adjudication. See Ross v. United States Postal Service, EEOC Request
No. 05900693 (Aug. 17, 1990); Brinson v. United States Postal Service,
EEOC Request No. 05900193 (Apr. 12, 1990). It is only in cases where
the complainant has engaged in delay or contumacious conduct and the
record is insufficient to permit adjudication that the Commission has
allowed a complaint to be dismissed for failure to cooperate. See Card
v. United States Postal Service, EEOC Request No. 05970095 (Apr. 23,
1998); Kroeten v. United States Postal Service, EEOC Request No. 05940451
(Dec. 22, 1994). Therefore, under the circumstances, we find that the
agency's dismissal of complainant's complaint for failure to cooperate
was improper.
When the AJ remanded the case because complainant failed to appear at
the hearing, the agency at the very least should have issued a final
decision on the merits of her complaint. See Edwards v. United States
Postal Service, EEOC Appeal No. 01981512 (Jan. 19, 1999) (finding
that agency must issue final decision on merits of complaint where the
investigation is completed, and an AJ has remanded the case because the
complainant failed to appear at the hearing). Further, in the present
case, complainant failed to attend the hearing because the scheduling
order was sent to the wrong address. Clearly, the agency had notice of
complainant's correct address prior to forwarding the file to the AJ,
or it would have sent complainant's Investigative Report to her old
address.
CONCLUSION
Accordingly, the agency's decision is REVERSED, and the complaint is
REMANDED for further processing as provided below.
ORDER
The agency is ORDERED to acknowledge to complainant that it has received
the remanded complaint within thirty (30) calendar days of the date
this decision becomes final and shall advise complainant of her right
to request a hearing with an EEOC AJ within thirty days of receipt of
the notice by sending a request to the EEOC office indicated on the
acknowledgment letter. The agency shall make every effort to expedite
the scheduling of a hearing on this matter. If complainant fails to
request a hearing within 30 days of receiving the agency's acknowledgment,
the agency shall issue an final decision on the merits of the complaint
within sixty (60) days thereafter.
A copy of the agency's letter of acknowledgment and notice of right
to request a hearing and a copy of the agency's final decision on the
merits of the complaint, if a hearing is not requested, must be sent to
the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 19848,
Washington, D.C. 20036. 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 64
Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter
referred to as 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)(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).
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
(R1199)
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 (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:
January 19, 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 1On 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.