0120072043
06-27-2007
Joanie S. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joanie S. Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120072043
Agency No. 4C270002006
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated February 15, 2007, dismissing her complaint
of unlawful employment discrimination in violation of Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29
U.S.C. � 791 et seq. In her complaint, complainant alleged that she
was subjected to discrimination on the bases of disability (light duty)
and reprisal for prior protected EEO activity under an EEO statute that
was unspecified in the record when:
1. on November 29, 2005, complainant's reporting hours were changed from
0800-1650 to 0700 to 1550; and
2. complainant was removed from her City Carrier route pending a fitness
for duty examination (FFDE).
Following the investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). The AJ determined that complainant had
failed to cooperate by not submitting a sworn affidavit setting out her
claims, and dismissed the hearing. The AJ remanded the case back to the
agency to issue a Final Agency Decision (FAD) on the merits. Instead,
the agency dismissed the claims for failure to prosecute, stating that
it was implementing the decision of the AJ.
We note that an AJ may deny a complainant's hearing request as a
sanction for failure to cooperate pursuant to the provisions of 29
C.F.R. � 1614.109(f)(3). See Hale v. Department of Justice, EEOC Appeal
No. 01A03341 (December 8, 2000). We note further, however, that the
regulation at � 1614.107(a)(7) provides that instead of dismissing an
entire complaint for failure to cooperate, a complaint may be adjudicated
if sufficient information is available. The Commission has 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. United States Postal Service, EEOC Request No. 05900693 (August 17,
1990). Generally, 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
dismissed for failure to cooperate. See Card v. U. S. Postal Service,
EEOC Request No. 05970095 (April 23, 1998). In the instant case,
we find, based on our review of the record, that the FAD improperly
dismissed the complaint for failure to cooperate. We note, for example,
that complainant has identified the alleged discriminatory actions,
the bases of discrimination, the date of the incidents, and the name of
the alleged discriminatory official. The record is thus sufficient for
the agency to issue a decision on the merits of complainant's claims.
Accordingly, the case is remanded to the agency to issue a FAD on the
merits in accordance with the Order set forth below.
ORDER (E0900)
Within sixty (60) calendar days of the date that this decision becomes
final, the agency shall issue a final decision addressing the merits
of complainant's claim, and provide complainant with appeal rights to
the Commission. A copy of the final agency decision 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 (R0900)
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 (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
June 27, 2007
__________________
Date
2
0120072043
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120072043