George E. Coles, Sr., Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 5, 1998
01981106 (E.E.O.C. Nov. 5, 1998)

01981106

11-05-1998

George E. Coles, Sr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


George E. Coles, Sr., )

Appellant, )

)

v. ) Appeal No. 01981106

) Agency No. 1C-151-1023-96

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

On November 21, 1997, appellant filed a timely appeal with this

Commission from an October 22, 1997 final agency decision, received by

him on November 4, 1997. The agency dismissed appellant's complaint

for failure to cooperate.

In his January 17, 1996 complaint, appellant alleged that he was

discriminated against on the bases of race (African American) and sex

(male) when on or about December 1, 1995, he was denied a change

of schedule while in a limited duty capacity. In dismissing the

complaint, the agency noted in its final decision that after receiving

the investigative file, appellant requested a hearing before an EEOC

Administrative Judge (AJ). The agency further noted that the AJ issued

a letter which informed appellant that a prehearing conference and

hearing were scheduled. The agency stated, however, that appellant and

his representative failed to participate in the telephonic prehearing

conference scheduled by the AJ. Consequently, the AJ remanded the

complaint to the agency on the grounds of appellant's failure to

cooperate.

The record reveals that after the agency completed its investigation

of appellant's complaint, appellant requested a hearing before an AJ.

Although the record does not contain copies of the AJ's scheduling

letter or remand order, appellant does not dispute on appeal that he was

informed of the prehearing conference and hearing and that he failed

to participate. Appellant also does not dispute that the AJ remanded

his complaint to the agency because he failed to participate in the

prehearing conference.

EEOC Regulation 29 C.F.R. �1614.107(g) provides that the 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.

Under the circumstances, we find that the agency improperly dismissed

the complaint. Due to appellant's inaction, he forfeited his right to

a hearing on his complaint. Wrenn v. Department of Veterans Affairs,

EEOC Request No. 05900010 (March 27, 1990). We find, however, that

appellant's failure to cooperate at the hearing stage, without more,

is not a sufficient showing to warrant cancellation of his complaint

on the grounds of failure to cooperate. The Commission had 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. U.S. Postal Service, EEOC Request No. 05900693 (August 17, 1990);

Brinson v. U.S. Postal Service, EEOC Request No. 05900193 (April 12,

1990). Furthermore, only in cases where the appellant has engaged in

delay or contumacious conduct and the record is insufficient to permit

adjudication has the Commission allowed a complaint to be dismissed

for failure to cooperate. See Raz v. U.S. Postal Service, EEOC Request

No. 05890177 (June 14, 1989); Delgado v. U.S. Postal Service, EEOC Request

No. 05900859 (October 25, 1990). We note that sufficient information

is likely to be available in a case processed to the hearing stage to

permit an adjudication on the merits. Therefore, we find that instead

of dismissing appellant's complaint pursuant to 29 C.F.R. �1614.107(g),

the agency should have issued a final decision on the merits based on

the information contained in the record. Therefore, we shall remand

the matter to the agency for issuance of a final decision pursuant to

29 C.F.R. �1614.110.

Accordingly, the agency's final decision is REVERSED and the complaint

is REMANDED to the agency for further processing consistent with the

Order below and applicable regulations.

ORDER

The agency is ORDERED to process the remanded complaint in accordance with

29 C.F.R. �1614.110 and to issue a final agency decision within thirty

(30) calendar days of the date this decision becomes final. A copy

of the final agency decision 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:

Nov. 5, 1998

DATE Ronnie Blumenthal, Director

Office of Federal Operations