01990169
08-12-1999
Daniel Valentine, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Daniel Valentine, )
Appellant, )
)
v. ) Appeal No. 01990169
) Agency No. 1-A-072-0025-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On October 8, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on October 6, 1998,
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. In his formal complaint, dated May 31, 1998,
appellant alleged that he was subjected to discrimination on the bases
of sex (male), religion (Christian), and national origin (Hispanic), but
did not provide specific allegations or occurrences of discrimination.
In the complaint, appellant requested that he �be treated fairly and
given the same privilege as the next person� and requested that his
off-days be moved to Saturday and Sunday.
In its FAD, dated October 2, 1998, the agency dismissed appellant's
complaint pursuant to EEOC Regulation 29 C.F.R. �1614.107(g), for failure
to prosecute. Specifically, the agency found that appellant failed to
respond to the agency's request for information, dated August 4, 1998
and received by appellant August 6, 1998. The request for information
informed appellant that if he failed to respond within fifteen (15)
days, his complaint may be dismissed. Further, the agency found that
without further information, the record contained insufficient evidence
to process appellant's complaint.
Appellant provided no response on appeal.
A review of the record reveals that by letter dated August 4, 1998,
and received by appellant August 6, 1998, the agency requested that
appellant provide information of, inter alia how he was discriminated
against, when it occurred, who were the responsible agency officials,
and how the relief sought would make appellant whole. The letter also
informed appellant that if he failed to respond within fifteen (15)
days, his complaint may be dismissed pursuant to EEOC Regulation 29
C.F.R. �1614.107(g). Further, the record does not contain a response
to the agency's August 4, 1998 letter.
The record also includes appellant's request for counseling, dated
March 3, 1998, to which appellant attached a statement alleging that
ever since appellant filed an EEO complaint on February 10, 1998,
everything appellant submitted to a named supervisor was denied, or at
least questioned. Specifically, the attachment explains, �last week�
appellant requested a temporary change of schedule that was denied.
Appellant asked that he be given Saturdays and Sundays off to attend
religious services. In the Counselor's Report, dated June 9,1998,
appellant's allegation is defined as not being given �Saturday and Sunday
as rest days.� The Counselor's Report also states that appellant �wants
Saturday/ Sunday off,� as a remedy. In the Final Interview/ Notice of
Right to File a Formal Complaint, appellant's allegation is defined as:
�. . .[appellant's] request for schedule change, (unspecified dates)
was refused.�
EEOC Regulation 29 C.F.R. �1614.107(g) provides that an agency shall
dismiss a complaint, or a portion 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.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
The Commission has stated that "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 canceled for failure to prosecute/cooperate."
Kroeten v. United States Postal Service, EEOC Request No. 05940451
(Dec. 22, 1994) (citation omitted).
Although appellant failed to provide key information on his formal
complaint form and failed to respond to the agency's request for
information, the Commission finds that dismissal pursuant to EEOC
Regulation 29 C.F.R. �1614.107(g) is improper. Upon a thorough review
of the record, the Commission finds sufficient evidence with which to
adjudicate appellant's complaint. When asked what relief he sought,
appellant repeatedly requested that his off-days be changed to Saturday
and Sunday, and alleged in his request for counseling, and in counseling
itself, that his supervisor denied his request for a schedule change.
Accordingly, the agency's decision is REVERSED, and the allegation is
REMANDED for further processing.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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 12, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations