01975926
10-06-1998
Frank Guerrero, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Frank Guerrero v. United States Postal Service
01975926
October 6, 1998
Frank Guerrero, )
Appellant, )
)
v. ) Appeal No. 01975926
) Agency No. 1-I-552-1009-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds the agency erred in its May 9, 1997 final
decision (FAD), received by appellant on May 13, 1997, dismissing
appellant's complaint<1> for failure to cooperate, pursuant to 29
C.F.R. �1614.107(g). The FAD framed appellant's EEO claims, which the
agency had accepted on December 2, 1996, without objection by appellant,
as alleging discrimination for prohibited reasons "when between June 12,
1996[,] and June 18, 1996[,] the following occurred":
(1) [appellant was] denied union representation;
(2) [appellant was] denied sick leave on 2/2/96[,] which was resubmitted
on 6/12/96;
(3) [appellant was] not accommodated within [his] medical restrictions;
[and]
(4) [appellant was] harassed by [a named employee] from injury
compensation.
The FAD dismissed appellant's complaint on the grounds that appellant had
failed to complete an investigative affidavit the agency had repeatedly
requested, despite notifying appellant that failure to respond could
result in dismissal of his complaint. The FAD stated, in relevant
part, that appellant had not advised the EEO office of "extenuating
circumstances which would prohibit [appellant] from completing the
requested investigative affidavit."
The gravamen of appellant's June 11, 1997 appeal is not entirely clear.
He appears to contend, in handwritten correspondence, that he ended a
counseling session on February 20, 1997, to seek legal representation,
when the EEO Counselor/Investigator (ECI) yelled at him, causing appellant
to become fearful and to feel "hot, sweating[,] [sic] disoriented,
[and] shakey [sic]." Appellant also argues that "[d]o [sic] to medical
disabilities purpritrated [sic] by [agency] experiences forwarded to
Office of Inspector General[,] I have been Medically [sic] unable to
finish in timely [sic]."<2>
The agency raised no new contentions in response to appellant's appeal.
EEOC Regulation 29 C.F.R. �1614.107(g) provides that an agency shall
dismiss a complaint, or a portion of a complaint, under the following
circumstances:
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 cancelled for failure to prosecute/cooperate." Kroeten
v. U.S. Postal Service, EEOC Request No. 05940451 (December 22, 1994)
(citation omitted).
In the present case, we find no evidence appellant engaged in delay or
contumacious conduct. We find that, on February 20, 1997, appellant had
requested that his complaint "be put on hold" to enable him to obtain
legal representation. ECI agreed to stay the matter for 30 days, in a
letter dated February 3, 1997. In this regard, we find the record to be
not entirely clear.<3> Although dated February 3, 1997, ECI's letter
references the February 20, 1997 meeting as having already occurred.
ECI also sent appellant another letter dated February 3, 1997, "to follow
up my letter of February 3, 1997." However, a March 28, 1997 Receipt
for Certified Mail references the instant matter and bears the notation
"3RD ATTEMPT AT SECURING AFFIDAVIT." In addition, we find no evidence
that certain specified enclosures, such as investigative affidavits and
questions, were transmitted with this particular correspondence.
With regard to appellant's mental state, cited by appellant, we find ECI
noted, in the first of his "February 3, 1997" letters, which referenced
the February 20, 1997 meeting, that "[a]fter answering the first two
questions [appellant] the [sic] decided that it might be in [appellant's]
best interest to be represented in this matter as [appellant was] very
confused in trying to answer the questions relative to [appellant's]
complaint."
We further find, from documents contained in the record on appeal,
that appellant has a history of substantial psychological, as well as
physical, impairments. We find, for example, from a January 5, 1996
medical report to the agency, the opinion "that significant psychiatric
and personality issues are severely impacting on [appellant's] ability
to work at the [agency] or manage his chronic low back pain syndrome."
We find that appellant had been hospitalized as a psychiatric patient
and had been medicated with psychotropic drugs. Therefore, we find it
reasonable to find that, given appellant's not so distant psychiatric
history, his professed present confusion and unchallenged contention
that ECI had yelled at him in a meeting to discuss his complaint, which
had adversely affected his mental state, and documentation in a record
that is not entirely clear, as we have previously indicated, invocation
of 29 C.F.R. �1614.107(g) is error.
Finally, we find the agency's reliance on 29 C.F.R. �1614.107(g) is
also misplaced because we find the record, albeit not entirely clear,
sufficient for the agency to proceed with adjudication of appellant's
complaint. As we have already noted, the agency itself had identified
the allegations in appellant's complaint, with relevant dates and names,
and had accepted those allegations for investigation. We find that
appellant's allegations are set forth, in varying degrees of specificity,
in, for example, ECI's EEO report, the agency's "Information for
Precomplaint Counseling" form signed by appellant on July 15, 1996, an EEO
investigative affidavit by appellant (although unsigned and undated), and
a June 18, 1996 handwritten statement by appellant. Additionally, we find
ECI had declared in his counseling report that "[m]anagement interviews
were conducted, and the allegations of discrimination were denied,"
although we find the report did not contain either reports or summaries
of those purported interviews. Furthermore, it appears appellant has
requested a hearing before an EEOC administrative judge. Thus, we find
that appellant's allegations can be further particularized, where needed,
by direction of the AJ in accordance with 29 C.F.R. �1614.109(b).
Accordingly, the FAD is hereby VACATED, and this matter is REMANDED for
further processing, at the point at which processing ceased, consistent
with this decision and applicable regulations. The parties are advised
that this decision is not a decision on the merits of appellant's
complaint. The agency is directed to comply with the Commission's ORDER
set forth below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to appellant
that it has received the remanded allegations 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 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 acknowledgement 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:
October 6, 1998
DATE Ronnie Blumenthal, Director
Office of Federal Operations
1Appellant's complaint was not dated. However, he appears to have filed
it in the first half of August 1996.
2We have not considered a subsequent statement filed by appellant on
July 23, 1997, inasmuch as it was filed more than 30 days from the date
he filed his appeal in this matter. See 29 C.F.R. �1614.403(d).
3As we stated in another matter: "The Commission...reminds all parties
that a file, or other documentation, which is transmitted for a decision,
should be well organized, identifiable, intelligible, coherent, and
complete with all relevant material. The Commission will remand matters
where the files are delivered in unacceptable physical condition or where
the record is inadequate." Hines v. U.S. Postal Service, EEOC Appeal
No. 01923566 (May 13, 1993) at note 9, citation omitted. In addition, EEO
Management Directive (MD) 110 (October 22, 1992) provides, inter alia,
that a "complaint file will be assembled in a suitable binder, have
a title page...and contain all documents pertinent to the complaint."
Id. Ch. 5, �VIII (A).