01A13296_r
07-26-2001
Viola Faaunur, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Viola Faaunur v. United States Postal Service
01A13296
July 26, 2001
.
Viola Faaunur,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13296
Agency No. 4E-980-0020-01
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office claiming that she was discriminated
against when, on October 2, 2000, she was denied the opportunity to take
Postal Exam 470. Informal efforts to resolve complainant's concerns
were unsuccessful. Subsequently, on January 23, 2001, complainant filed
a formal complaint.
On April 12, 2001, the agency issued a decision dismissing the complaint
for failure to cooperate. Specifically, the agency noted that, in a
letter dated February 22, 2001, the investigator requested an affidavit
from complainant. Although the letter was received by complainant
on February 26, 2001, she did not respond. Complainant also failed
to respond to a second request, dated March 16, 2001, and received on
March 23, 2001. Therefore, the agency concluded that complainant failed
to cooperate by not making specific charges and providing information
necessary to investigate.
On appeal, complainant argues that between December 2000 and February
2001 she was involved in a �dramatic eviction lawsuit�. She maintains
that during February 2001 her landlord forced her to move, and it was
not until March 14, 2001 that she had a home address and phone number.
In support of her assertions, complainant submits documents from the
Superior Court of Washington for King County, Washington.
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 fifteen 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 complainant may be
adjudicated if sufficient information for that purpose is available.
In this regard, the Commission has long held that an agency should not
dismiss a complaint when it has sufficient information upon which to base
an adjudication. See Ross v. United States Postal Service, EEOC Request
No. 05900693 (August 17, 1990); Brinson v. United States Postal Service,
EEOC Request No. 05900193 (April 12, 1990). 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 dismissed for failure to cooperate. See Card
v. United States Postal Service, EEOC Request No. 05970095 (April 23,
1998); Kroeten v. United States Postal Service, EEOC Request No. 05940451
(Dec. 22, 1994).
In the instant case, the record shows that a request for an affidavit,
which included a warning of possible dismissal if a response was not
received within fifteen days, was sent to complainant's address of record.
A Domestic Return Receipt show that a party signed for the request
on February 26, 2001, whom complainant has indicated is her sister.
As noted above, it is during this time that complainant contends
she was in the process of being evicted. When the agency failed to
receive a response, a second request, dated March 16, 2001, was sent.
A Domestic Return Receipt was signed on March 23, 2001 by a party who
does not have complainant's surname and it is unclear if the party is
related to complainant. Further, according to complainant she no longer
resided at the 3312 South 166th Street address at that time.
While we acknowledge that two requests were sent to complainant, we do
not find that complainant engaged in contumacious conduct. The record
establishes that during the relevant time complainant was in the process
of being evicted from her home. Moreover, the agency's request sought
information regarding: the �exact nature of the incidents� and why they
were discriminatory, the type of discrimination, the names of officials,
and names of witnesses. Much of this information was previously provided
by complainant in three typed pages she submitted when she requested
counseling. Consequently, we find that the agency's dismissal of the
complaint for failure to cooperate was improper. Complainant, however,
is advised to cooperate with future requests by the agency, as failure
to do so may result in the dismissal of her complaint.
Accordingly, the agency's decision to dismiss complainant'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
The agency is ORDERED to resume processing of complainant's complaint
from the point where processing ceased. The agency shall acknowledge to
complainant that it has reinstated and resumed processing of complainant's
complaint.
A copy of the agency letter of acknowledgement 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 (R0900)
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 within ninety (90) calendar days from the date
that you receive this decision. 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 (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
July 26, 2001
__________________
Date