Kelly J. Butler, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 9, 2003
01A30336_r (E.E.O.C. Apr. 9, 2003)

01A30336_r

04-09-2003

Kelly J. Butler, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Kelly J. Butler v. United States Postal Service

01A30336

April 9, 2003

.

Kelly J. Butler,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A30336

Agency No. 4-H-335-0164-02

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision dated October 2, 2002 dismissing her 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., and Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. �791 et seq.

The agency characterized complainant's complaint as alleging that she was

subjected to discrimination on the bases of disability and in reprisal

for prior EEO activity when:

On April 9, 2002, management failed to respond to the Department of

Labor's Office of Workers' Compensation Programs (OWCP) within the twenty

days required by the agency; and

On an unspecified date, she was denied an accommodation.

In its final decision dated October 2, 2002, the agency dismissed claim

(1) for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1),

and claim (2) pursuant to 29 C.F.R. � 1614.107(a)(7) for failure to

cooperate. Regarding claim (1), the agency determined that complainant

was expressing dissatisfaction with the agency's response to an OWCP

inquiry, thereby collaterally attacking that proceeding. Regarding claim

(2), the agency found that it sent two letter requests to complainant

(August 2 and 26, 2002)<1> for clarification of her complaint, and that

complainant sent three separate responses (on August 6, and September

5 and 12, 2002) all failing to provide specific incidents and dates.

The agency further determined that, as part of the second request,

complainant had been notified that her complaint would be dismissed if

she did not provide the requested information within fifteen days of

its receipt. The agency also stated that complainant had filed numerous

complaints of failure to accommodate, and it was unable to determine

without further information if complainant's claim was new or if timely

EEO contact had been made.

Claim (1)

The Commission finds that complainant's claim (1) was properly dismissed

pursuant to 29 C.F.R. � 1614.107(a)(1). In claim (1), complainant asserts

that the agency failed to respond in a timely manner to the Department of

Labor concerning her OWCP compensation claim. The Commission has held,

however, that an employee cannot use the EEO complaint process to lodge

a collateral attack on another proceeding. See Wills v. Department

of Defense , EEOC Request No. 05970596 (July 30, 1998); Kleinman v.

United States Postal Service, EEOC Request No. 05940585 (September

22, 1994). The proper forum for complainant to raise her challenges to

actions which occurred as part of the OWCP process is within that process

itself. It is inappropriate to now attempt to use the EEO process to

collaterally attack actions which occurred as a part of the OWCP process.

Claim (2)

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 also held that such dismissal is applicable only in

cases where there is a clear record of delay or contumacious conduct

by the complainant. See Anderson v. USPS, EEOC Request No. 05940850

(February 24, 1995).

The agency dismissed claim (2) based on complainant's purported failure

to provide specific incidents and dates concerning the agency's alleged

failure to accommodate. The record indicates that complainant's replies

to the agency's requests for information were confusing and somewhat

non-responsive; however, complainant has submitted information relevant

to the agency's requests. In a separate September 5, 2002 response to

the agency, complainant submitted a list of �all incidents which are

the result of [the agency's] failure to follow [complainant's Doctors']

orders of record.� The list includes specific dates of physicians'

orders submitted to the agency concerning complainant's job restrictions

that the agency allegedly failed to follow, and states that �[t]his is

an emergency response in order to comply to the EEO 15 day deadline.�

We therefore find that the agency has not established that complainant

engaged in delay or contumacious conduct sufficient to warrant dismissal

of the complaint. Moreover, we find that the agency has not shown that

the complaint could not be adjudicated without further information.

A review of the entire record, including complainant's formal complaint,

the EEO Counselor's report, and complainant's responses to requests for

information, persuades the Commission that there is sufficient information

in the record to adjudicate the complaint. We therefore find that claim

(2) was improperly dismissed for failure to cooperate pursuant to 29

C.F.R. � 1614.107(a)(7).

Accordingly, the agency's final decision dismissing claim (1) is AFFIRMED.

The agency's final decision dismissing claim (2) is REVERSED, and that

claim is hereby REMANDED for further processing in accordance with the

Order below.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant

that it has received the remanded claims 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 (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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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. If you file

a request to reconsider and also file a civil action, 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

April 9, 2003

__________________

Date

1Although the agency's decision states a

second request was sent on August 6, 2002, the record indicates the

second request was dated August 26, 2002.