0120092005
06-18-2010
Gregory Prioleau,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Headquarters)
Agency.
Appeal No. 0120092005
Agency No. 6F-000-0016-08
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated March 18, 2009, dismissing his complaint of unlawful
employment 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
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. For the following reasons, the Commission REVERSES
the agency's final decision.
ISSUE PRESENTED
Whether Complainant's complaint was appropriately dismissed on the
grounds that Complainant failed to cooperate.
BACKGROUND
In his complaint, Complainant, a Communications Equipment Specialist in
Raleigh, North Carolina, alleged that he was subjected to discrimination
on the bases of race (African-American), age (59), and reprisal for prior
protected EEO activity [under Title VII and the ADEA] when, on August
26, 2008, Complainant was non-selected for a Communications Engineer
position.
Complainant's complaint was accepted for investigation. Complainant and
his representative received a request to complete an affidavit on January
26, 2009. The request contained a warning that failing to sufficiently
complete and return the affidavit within fifteen (15) days could lead
to a dismissal of the complaint. The Agency dismissed Complainant's
complaint on March 18, 2009 pursuant to 29 C.F.R. �1614.107(a)(7), failure
to cooperate, because Complainant did not return the affidavit.1
CONTENTIONS ON APPEAL
On appeal, Complainant explained that he could not provide the affidavit
within the required 15 day time period because he was suffering from
a medical condition/illness during the time period that the affidavit
was requested. In response, the Agency asks the Commission to affirm
the dismissal of the complaint.
FINDINGS AND ANALYSIS
EEOC Regulation 29 C.F.R. � 1614.107(a) (7) provides for the dismissal
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. The regulation further provides that,
instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available. The
Commission has held that the regulation is applicable, however, only
in cases where there is a clear record of delay or contumacious conduct
by Complainant. See Card v. U.S. Postal Serv., EEOC Request No. 05970095
(April 23, 1998); Anderson v. U.S. Postal Serv., EEOC Request No. 05940850
(February 24, 1995).
In the instant case we find insufficient evidence to support a conclusion
that Complainant purposefully engaged in delaying or contumacious conduct.
In fact, Complainant demonstrated a clear intent to proceed with the
subject complaint when his representative filed a motion to consolidate
this complaint with another related complaint on February, 17 2009,
before the Agency dismissed the instant complaint. (Complainant's Appeal,
Exhibit A). This shows that Complainant was actively proceeding with
his complaint even though he did not provide the affidavit within the
15 day period.
In addition, we find that the record is sufficiently developed for the
complaint to be adjudicated on its merits. The Record of Investigation
(ROI) contains affidavits from witnesses to the event at hand, as
well as a description of all of Complainant's previous EEO activity.
The EEO Counselor's report and Complainant's formal complaint contain
Complainant's account of the events, along with the issues and bases
for the complaint. Specifically, he alleged that he was subjected to
discrimination when he was not selected for the position of Communications
Engineer. He also stated that he believed it was discrimination because a
younger, white individual was selected and because the selecting official
was the subject of a previous complaint filed by Complainant. The Agency
has failed to show why the ROI is insufficient for adjudication on the
merits. Accordingly the Agency's dismissal is REVERSED, and the case is
REMANDED to the Agency for processing in accordance with the Order below.
ORDER (E0408)
The Agency is ordered to process the remanded claim in accordance with
29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claim 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 (K1208)
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 77960, Washington,
DC 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
______6/18/10_______________
Date
1 Complainant has not, as of the time the appeal was filed, responded
to the affidavit.
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2
0120092005
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092005