01a00569
04-24-2000
Clyde Fish, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Clyde Fish, )
Complainant, )
)
v. ) Appeal No. 01A00569
) Agency No. 4H-335-0254-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On October 28, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) issued on October 19,
1999, pertaining to his 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., Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. � 791 et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>
Pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29
C.F.R. � 1614.405), the Commission accepts the complainant's appeal from
the agency's final decision in the above-entitled matter.
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed the
present complaint for failure to cooperate.
BACKGROUND
The record reflects that complainant, a rural letter carrier, for the
United States Postal Service, was denied light duty and placed on forced
leave because he was incapable of performing the functions of his job
due to physical disabilities.
Believing that he was the victim of discrimination, complainant, on April
14, 1999, initiated contact with an EEO Counselor. During the counseling
period, complainant stated that he received a notice of proposed forced
leave from management and complainant specifically named both the Post
Master and his supervisor as the responsible agency officials.
Counseling failed, and on May 5, 1999, complainant filed a formal
complaint claiming that he was the victim of unlawful discrimination on
the bases of his age (forty and over), disability (physical) and reprisal
(prior EEO activity). The formal complaint was comprised of the matters
for which complainant underwent EEO counseling, discussed above.
Subsequent to filing the formal complaint, the agency, on August 6,
1999, requested additional information from complainant. This request
was received by complainant on August 7, 1999. Complainant did not
respond to this request. Again, for a second time, on August 30,
1999, the agency requested additional information from complainant.
The second request was received by complainant on September 1, 1999.
This request was also not responded to.
Consequently, on October 19, 1999, the agency issued a final decision
dismissing the present complainant for failure to cooperate. The agency
found that complainant received both requests for additional information
and failed to respond.
ANALYSIS AND FINDINGS
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 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.
Under the circumstances in this case, we find that the agency's dismissal
was improper. The record indicates that on August 7, 1999 and September
1, 1999, complainant received memorandums from the agency requesting that
he furnish an affidavit, and indicating that failure to do so within 15
days would result in dismissal of his complaint. According to the agency,
complainant failed to furnish his affidavit within the requisite time
frame, and therefore, his complaint should be dismissed for failure
to cooperate. We note, however, that the agency failed to show why
complainant's affidavit was necessary for the further processing of
the complaint.
The agency has not claimed that the complaint was vague, and the agency
found that there was sufficient information in the record to be able to
define the complaint and accept it for investigation. Moreover, we note
that complainant's complaint, along with the EEO Counselor's Report,
addressed the incident of alleged discrimination, with reference to
the responsible agency official by name, the bases on which he alleged
discrimination, and the corrective action sought.
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 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 (April 23,
1998); Kroeten v. United States Postal Service, EEOC Request No. 05940451
(December 22, 1994). Therefore, under the circumstances, we find that
the agency's dismissal of complainant's complaint for failure to cooperate
was improper.
CONCLUSION
For the reason set forth herein, the Commission hereby REVERSES the
decision of the agency dismissing the present complaint for failure
to cooperate. Accordingly, the complaint is REMANDED to the agency
for further processing in accordance with this decision and applicable
regulations.
ORDER (E1199)
The agency is ORDERED to process the remanded claims in accordance with
64 Fed. Reg. 37,644, 37,656-7 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.108). The agency shall acknowledge to
the complainant that it has received the remanded claims within thirty
(30) calendar days of the date this decision becomes final. The agency
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless the
matter is otherwise resolved prior to that time. If the complainant
requests a final decision without a hearing, the agency shall issue
a final decision within sixty (60) days of receipt of complainant's
request.
A copy of the agency's letter of acknowledgment to complainant and an
copy of the notice that transmits the investigative file and notice of
rights 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 (M0300)
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); 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 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:
April 24, 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 Assistant1On 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.