01A34485_r
02-11-2004
Curtis Flores, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Curtis Flores v. United States Postal Service
01A34485
February 11, 2004
.
Curtis Flores,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34485
Agency No. 4F-945-0111-03
DECISION
INTRODUCTION
Complainant timely appealed to this Commission from the agency's July 2,
2003 dismissal of his employment discrimination complaint. The agency
dismissed the complaint for �failure to cooperate or proceed with the
processing of his EEO complaint,� pursuant to 29 C.F.R. � 1614.107(a)(7).
On appeal, complainant argues that the agency should not have dismissed
the complaint because it already possessed the information it was seeking
in its June 5, 2003 request for further information, and had sufficient
information to adjudicate the complaint.
BACKGROUND
On May 14, 2003, complainant filed a formal complaint alleging
discrimination in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. and Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq., on the bases of race (African-American/Hispanic),
disability (stress) and reprisal for prior EEO activity. By notice
dated May 23, 2003, the agency accepted the complaint for investigation,
and identified it as alleging continuing harassment since complainant
began his career appointment as a Part-Time Flexible Letter Carrier in
August 2000. The agency further identified the incidents that comprised
the allegedly hostile work environment as including when:
Complainant received a Notice of Suspension on February 3, 2003;
False accusations were made on March 12, 2003 regarding the theft of
a supervisor's vehicle;
False accusations were made concerning complainant's work performance;
Complainant was accused of improperly using overtime on March 27,
2003; and
Complainant was denied official time and mileage to visit his EEO
representative on April 9, 2003.
By letter dated May 28, 2003, complainant disputed the agency's
identification of his complaint. Therein, complainant argued that his
claims should be identified exactly as follows:
I have been subjected to continuing violations of harassment, prohibited
personnel practices, hostile work environment, intentional infliction
of emotional distress, disparate treatment, denial of official time,
false allegations, retaliation, violation of my Constitutional and
Civil Rights, and other acts made unlawful by the Civil Right [sic]
Act of 1964[,] as amended.
In order for the [a]gency to better understand my issues[,] I am hereby
putting the [a]gency on notice that my complaint is being processed under
the theory of Continuing Violation. The latest act that falls within
the 45-day window period is when on March 12, 2003[,] I was called into
a meeting and falsely accused of theft of my immediate supervisor[']s
vehicle, and other allegations regarding my work performance[;] and on
April 9, 2003[,] I received a letter restraining and interfering with
the use of reasonable and mutually agreed upon official time.
Complainant's May 28, 2003 Letter to Senior EEO Complaints Investigator
[emphasis in original].
In response to complainant's letter, the agency requested additional
information from complainant on June 5, 2003. The agency asked
complainant to specify exactly what other unlawful acts occurred,
when they occurred, and who was involved. It asked similar questions
concerning the disparate treatment, harassment, hostile work environment,
emotional distress, prohibited personnel practices, Constitutional rights
violations, and false accusations complainant claimed to have suffered
in his May 28, 2003 letter. The agency also warned complainant that any
failure to respond within fifteen (15) days may result in dismissal of
his complaint.
In its final decision, the agency admitted that complainant never
claimed the certified mailing of the agency's June 5, 2003 request
for information, despite three attempts at delivery. Nonetheless, the
agency found that complainant had notice of the information request,
because complainant's non-attorney representative received a copy of
the request. Ultimately, the agency found that the complaint should
be dismissed for failure to cooperate or proceed because complainant
had notice of the agency's request for information, and the agency no
longer had sufficient evidence to adjudicate the complaint in the wake
of complainant's dispute regarding the identification of the issues.
On appeal, complainant provides a June 16, 2003 letter from his
representative, addressed to the Senior EEO Complaints Investigator,
responding to the agency's request for information. Therein,
the representative claimed that complainant already had provided all
necessary information in his formal complaint, his attachments to the
formal complaint, and in response to prior requests for information during
the pre-complaint process. Complainant further argues that dismissal
is inappropriate because he never engaged in contumacious conduct.
ANALYSIS AND FINDINGS
A. FAILURE TO COOPERATE DISMISSAL
The agency may dismiss a complaint when 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 has failed to
address the agency's request in his response. 29 C.F.R. � 1614.107(a)(7).
Dismissal on this ground is appropriate only when the agency's request
includes a notice of the proposed dismissal. Id. If sufficient
information is available, the complaint may be adjudicated rather than
dismissed for failure to cooperate. Id.
When a complainant is represented by an attorney, all official time frames
must be calculated from the representative's receipt of documents.
29 C.F.R. � 1614.605(d). In the present case, complainant is not
represented by an attorney; therefore, time frames are calculated from
complainant's receipt of documents, not his representative's receipt
of the same documents. The agency has not shown that complainant
ever received its June 5, 2003 request for information. Furthermore,
complainant's representative responded to the agency's request for
information, and referred the agency to information it already held to
answer its questions.
In its letter of acceptance, the agency properly identified the incidents
complainant provided in attachments to his formal complaint as the
agency actions that complainant believed were discriminatory harassment.
Complainant, in his May 28, 2003 letter, identifies different theories
of discrimination, such as disparate treatment and harassment. He has
failed, however, to provide any different claims of discrimination.
In response to the agency's request for further information, complainant's
representative simply referred the agency back to the information it
already identified in its May 23, 2003 letter of acceptance. From this
information, the Commission determines that the agency properly defined
complainant's employment discrimination complaint in its May 23, 2003
letter of acceptance. The Commission finds that the agency's dismissal
for failure to cooperate was improper.
B. DENIAL OF OFFICIAL TIME
Complainant is entitled to a reasonable amount of official time, if he
is otherwise on duty, to prepare the complaint and respond to agency
and Commission requests for information. 29 C.F.R. � 1614.605(b).
Although the agency must provide complainant with reasonable official
time, �[t]he agency is not obligated to . . . pay travel expenses to
facilitate the choice of a specific representative or to allow the
complainant and representative to confer.� Id. In the present case,
complainant contends he was denied a reasonable amount of official time
on April 9, 2003.
Although the agency appears prepared to investigate this matter,
identified as claim (5), the Commission has the authority to remedy a
violation of an official time claim without a finding of discrimination.
Edwards v. United States Postal Service, EEOC Request No. 05960179
(Dec. 23, 1996) (citing Edwards v. United States Postal Service, EEOC
Request No. 05950708 (Oct. 31, 1996)). In such cases, the Commission's
focus is not the agency's motivation, but rather is whether complainant
was denied a reasonable amount of official time. Id.
The record in the present case contains sufficient evidence for the
Commission to determine whether complainant was denied a reasonable amount
of official time to prepare for his complaint. Complainant requested
an entire day of official time, plus travel expenses, in order to visit
with his out-of-town representative in person. The agency responded
to complainant's request on April 9, 2003, noting that at the time
complainant made his request, his complaint was still in its initial
stages. The agency found that the amount of time normally necessary
to prepare for any proceeding at this point in the process is minimal,
ranging from only a few minutes to an hour. The agency determined that
complainant was entitled to an hour of official time, and informed
complainant of the appropriate procedures for making such a request.
The agency also denied complainant's request for mileage to drive to
his representative's office.
In the present case, complainant has provided no information to
justify his need for more than one hour of official time. At the
point complainant requested official time, he was not preparing for an
affidavit, a hearing, a meeting with an investigator, or an appeal.
On April 9, 2003, the informal counseling process for his complaint
was ongoing. The Commission finds that the agency's grant of one hour
official time, given the circumstances surrounding complainant's request,
was sufficient. Further, the Commission also finds that complainant
was not entitled to travel expenses to confer with his representative,
pursuant to the express language of EEOC Regulation 29 C.F.R. �
1614.605(b). Therefore, the Commission finds that the agency provided
complainant with a reasonable amount of official time on April 9, 2003.
CONCLUSION
Accordingly, the agency's dismissal of complainant's complaint for
failure to cooperate is REVERSED, and the complaint is REMANDED for
further processing. The Commission also finds that the agency's decision
to grant only one hour of complainant's official time request, and to
deny his request for travel expenses, was reasonable and appropriate.
Therefore, the agency need not investigate claim (5) on remand.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
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 a
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 (K0501)
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 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)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. 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 your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 11, 2004
__________________
Date