Michael A. Smith, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 10, 2005
01a40692_r (E.E.O.C. Jan. 10, 2005)

01a40692_r

01-10-2005

Michael A. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Michael A. Smith v. United States Postal Service

01A40692

January 10, 2005

.

Michael A. Smith,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A40692

Agency No. 4C-450-0115-00

DECISION

The record indicates that complainant filed his complaint dated September

23, 2000, alleging discrimination based on race and sex when: on July

17, 2000, he was put on emergency placement; on July 12, 2000, his

supervisor delayed him from clocking in on time; and on an unspecified

date, a threat against him was ignored by management. After completion

of the investigation of the complaint, complainant requested a hearing

before an EEOC Administrative Judge (AJ). On March 19, 2003, the AJ

issued complainant an Order to Show Cause why his complaint should not

be dismissed due to his failure to participate in the March 19, 2003

prehearing conference call. Therein, complainant was, specifically,

informed that he must respond to this order within 15 days of his receipt

of such, otherwise the case would be dismissed for failure to cooperate.

Complainant did not respond to the order. On April 10, 2003, the AJ

issued a decision dismissing the case and remanded the case to the agency

for its dismissal for failure to cooperate, pursuant to 29 C.F.R. �

1614.107(a)(7). On May 14, 2003, the agency issued a notice of final

action fully implementing the AJ's decision to dismiss the complaint.

In the instant case, complainant, other than filing a notice of appeal,

does not submit any argument to the Commission contesting the AJ's

dismissal or the agency's action. Furthermore, the Commission notes

that the record is devoid of any documentation submitted by complainant

explaining his not being able to participate in the prehearing conference

call at issue. Based on the foregoing, the Commission finds that the

agency's decision to dismiss the complaint for failure to cooperate

was proper.

Accordingly, the agency's decision is hereby AFFIRMED.

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 (S0900)

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. 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

January 10, 2005

__________________

Date