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.