01a02267
08-02-2000
Shelly M. Johnson, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Shelly M. Johnson, )
Complainant, )
)
v. ) Appeal No. 01A02267
) Agency No. 1-G-708-0082-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated January 7, 2000, dismissing 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), physical disability (bilateral
shoulder tendinitis, rotator cuff tear), and in reprisal for prior EEO
activity when on July 10, 1998, she was forced to work in CFS while
another employee was paid higher level pay to input second class mail
into the computer system.
The agency dismissed the complaint for failure to cooperate.
Specifically, the agency found that complainant received two requests
for affidavits, but failed to respond to either request.
The record reveals that the complaint was accepted for investigation on
July 23, 1999. The record also includes two requests for affidavits from
complainant, which complainant received on August 10, 1999, and November
27, 1999, respectively. Both affidavits sought detailed information
concerning the exact circumstances of complainant's complaint, her
disability, management's awareness of her disability, and whether she
requested accommodations. These requests informed complainant that her
failure to respond within fifteen (15) days could result in dismissal
of her complaint.
The record also includes a copy of the Investigative Report. This report
contains several affidavits from management officials, concerning their
knowledge of complainant's disability and/or medical restrictions,
her requested accommodations (light duty), and their knowledge of the
incident. The record also contains a copy of the formal complaint and
Counselor's Report, detailing the incident at issue and providing the
names of the other employees involved.<2> Further, the record reveals
that complainant filed a separate complaint, Agency No. 4-G-700-0225-98,
forwarded to an EEOC Administrative Judge (AJ) on September 22, 1999.
It appears that complainant provided an affidavit in the investigation
of Agency No. 4-G-700-0225-98.
In limited circumstances, an agency may dismiss a complaint for failure
to cooperate. The agency must present complainant with a written request
for information, informing her that the complaint may be dismissed if she
fails to respond to the request within 15 days. See 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as 29 C.F.R. �
1614.107(a)(7)). If complainant fails to respond, or her response does
not address the agency's request, then her complaint may be dismissed
for failure to cooperate. See id. But if sufficient information is
available to adjudicate the matter, dismissal for failure to cooperate
is inappropriate. See id.
In the present case, the agency has sufficient information to adjudicate
the case. It has detail concerning the incident alleged, the name of the
other employee complainant claims to have received favorable treatment,
the circumstances of that treatment, and the agency's response to her
requests for accommodations. Much of the information requested in
the affidavit already exists in the complaint file.<3> Therefore,
the agency's dismissal was improper.
CONCLUSION
Accordingly, the agency's dismissal is REVERSED, and the claim is REMANDED
for further processing.
ORDER
The agency is ORDERED to process the remanded claim from the point
processing ceased. The agency shall complete its investigation of the
complaint within sixty (60) days of the date this decision becomes final.
At the conclusion of the investigation, the agency must forward a copy of
the investigative file, and advise complainant of her right to request a
hearing with an EEOC Administrative Judge, or an immediate final decision
from the agency.
A copy of the agency's notice transmitting 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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:
August 2, 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 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.
2Complainant, a bulk mail carrier, was told that no work was available
within her restrictions. She claims that a higher-paid Caucasian letter
carrier was given bulk mail duties, while complainant was placed in the
CFS.
3Complainant's failure to provide specific information concerning her
disability may impact whether she prevails in her disability claim, but
should not deter the agency from adjudicating the complaint. In addition,
the agency may be able to obtain such information from her affidavits
in other complaints.