01976510
10-14-1998
Lola L. Gordon, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Lola L. Gordon, )
Appellant, )
)
v. ) Appeal No. 01976510
) Agency No. 1D-231-1125-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On August 26, 1997, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) dated July 10, 1996, pertaining to 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
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. �621 et seq.<1> In her complaint, appellant alleged that she was
subjected to discrimination on the bases of race (Black), sex (female),
and age (43) when on or about March 24, 1995, she was issued a Letter of
Separation during her probationary period for unsatisfactory attendance.
The agency initially accepted appellant's complaint, and upon
completion of its investigation, appellant requested a hearing before
an Administrative Judge ("AJ"). At some point prior to the pre-hearing
conference, appellant changed both her address and her representative.
By letter dated February 21, 1996, appellant informed the agency of
the name of her new representative, but failed to include his address
or telephone number. Additionally, although the record indicates that
appellant was properly informed of her responsibility to keep the agency
advised of any address changes, she neglected to notify the agency that
she had changed her address.
On April 8, 1996, the AJ issued an Order informing the parties that a
pre-hearing conference would be held by telephone at 10:00 a.m. on May
9, 1996. The AJ's order, which presumably was sent to appellant's old
address, instructed appellant that she or her representative "must provide
the agency representative, at least one week prior to the conference, with
the telephone number(s) where they can be reached." There is no evidence
that appellant provided the agency her and/or her representative's
telephone number. On May 9, 1996, the agency official attempted to
telephone both appellant and the only representative whose number the
agency had, i.e., her first representative of record. The record shows
that no answer was reached at appellant's first representative's number,
and that appellant's own telephone number of record was no longer correct.
As a result of appellant's failure to make herself available for
the pre-hearing conference, on May 22, 1996, the AJ issued an Order
dismissing her complaint pursuant to 29 C.F.R. �1614.107 and 109(d).
The agency subsequently dismissed appellant's complaint pursuant to EEOC
Regulation 29 C.F.R. �1614.107(g), for failure to cooperate. It is from
this decision that appellant currently appeals.
EEOC Regulation 29 C.F.R. �1614.107(g) provides that an 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.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
The Commission has stated that "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 canceled for failure to prosecute/cooperate."
Kroeten v. U.S. Postal Service, EEOC Request No. 05940451 (December 22,
1994) (citation omitted).
In the present case, we find that the agency's dismissal was improper.
We find that appellant's failure to apprise the agency of her current
address and telephone number, resulting in her failure to respond to the
AJ's requests, warranted the AJ's remand of the complaint to the agency.
Due to appellant's actions/inaction, she forfeited her right to a
hearing on her 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 her complaint
on the grounds of failure to prosecute. That is because of the
Commission's general rule that an agency may not cancel a complaint
when it has sufficient information on which to base an adjudication.
See Ross v. USPS, EEOC Request No. 05900193 (April 12, 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.
Accordingly, the agency's decision to dismiss appellant's complaint
was improper, and is hereby REVERSED. The complaint is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the agency is ORDERED to issue a final decision addressing the merits
of appellant's complaint based on the present record.
A copy of the agency's final 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:
Oct. 14, 1998
____________________________
DATE Ronnie Blumenthal, Director
1The agency was unable to supply a copy of a certified mail return
receipt or any other material capable of establishing the date
appellant received the agency's final decision. Accordingly,
since the agency failed to submit evidence of the date of receipt,
the Commission presumes that appellant's appeal was filed within
thirty (30) days of receipt of the agency's final decision. See,
29 C.F.R. �1614.402.