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