01992211
02-02-2001
Winslow Gutierrez, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Winslow Gutierrez v. United States Postal Service
01992211
February 2, 2001
.
Winslow Gutierrez,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01992211
Agency No. 4-G-770-0138-98
DECISION
Based on a review of the record, we find that the agency properly
dismissed complainant's complaint, pursuant to EEOC Regulation 29
C.F.R. � 1614.107(a)(7), for failure to prosecute.<1> The complainant
alleged that he was subjected to discrimination on the bases of race
(Caucasian), national origin (Mexican-American) and reprisal (prior EEO
activity) when on September 17, 1997, he became aware that his name had
been inactivated effective September 16, 1997, and this caused other
carriers with lower scores to be hired ahead of him.
By letter dated March 5, 1998, the agency notified the complainant that
his complaint had been accepted for investigation and requested he be
prepared to go forward with his case when an EEO Counselor/Investigator
contacted him. The record shows that the complainant received, by
certified mail, the first request for an affidavit on March 20, 1998.
The request contained a notice that failure to comply with the request
within fifteen days could result in dismissal of the compliant for
failure to prosecute, pursuant to 29 C.F.R. � 1614.107(g).
The record shows that the complainant received, by certified mail,
the agency's second request for his affidavit which also contained
a notice that failure to comply within fifteen days could result in
dismissal of the compliant for failure to prosecute, pursuant to 29
C.F.R. � 1614.107(g). Having received no response to either of its
requests, the agency, on December 30, 1998, dismissed the complainant's
complaint for failure to prosecute pursuant to 29 C.F.R. � 1614.107(g).
It is from this determination that the complainant here appeals.
The complainant argues that the agency is dishonestly dumping complaints
this way and that the affidavit contained questions that were asked and
answered at least three times in the informal complaint, formal complaint
and acceptance letter. The agency did not respond.
The regulation set forth at 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 included
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.
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 (August 17, 1990); Brinson v. United States Postal Service,
EEOC Request No. 05900193 (April 12, 1990). It is only in cases where
the complainant has engaged in delay or contimacious 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 (April 23,
1998); Kroeten v. United States Postal Service, EEOC Request No. 05940451
(December 22, 1994).
In the instant case, we find that the agency provided the complainant
with adequate written notice of the possibility of dismissal for failure
to provide the requested affidavit. The record shows multiple delays
for which no justification is provided. Further, because the request
at issue concerns the complainant's initial affidavit, we find that the
agency was unable to proceed with the investigation and that the agency
did not have sufficient evidence to adjudicate the instant complaint.
Accordingly, we find that the complainant failed to cooperate in
the processing of the instant complaint, and we AFFIRM the agency's
dismissal.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 2, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
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 29 C.F.R. Part 1614 in deciding the present
appeal. The regulations, as amended, may be found at the Commission's
website at www.eeoc.gov.