01A11288_r
03-27-2001
Yale C. Smith, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Yale C. Smith v. United States Postal Service
01A11288
March 27, 2001
.
Yale C. Smith,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11288
Agency Nos. 4G-760-0022-99, 4G-760-0090-99
Hearing No. 310-99-5591X
DECISION
On January 20, 1999, and February 18, 1999, the agency accepted
complainant's claims of discrimination for investigation. In Agency Case
No. 4G-760-0022-99, complainant alleged discrimination on the bases of
race (Black) and color (brown) when on September 26, 1998, his request for
annual leave was denied. In Agency Case No. 4G-760-0090-00, complainant
alleged discrimination on the bases of race (Black), color (brown), sex
(male), national origin (African-American), disability (migraine headaches
and bad feet), and in reprisal for prior EEO activity when complainant
was subjected to harassment and bothered on the job and when he spoke to
management on November 25, 1998, about the problem, no corrective action
was taken. At the conclusion of the investigation, complainant requested
a hearing. Complainant's two cases were consolidated and a hearing was
scheduled for June 14, 2000. On June 14, 2000, complainant's designated
representative was present at the hearing, however, complainant did not
appear. Complainant's representative was unable to locate or contact
complainant for his participation in the hearing.
On June 14, 2000, the EEOC Administrative Judge (AJ) issued a Show
Cause Order. The Show Cause Order directed complainant to explain his
failure to appear at the hearing and informed complainant that failure
to respond could result in dismissal of his complaint. Although the
Show Cause Order directed complaint to respond by close of business on
June 30, 2000, complainant failed to respond within the stated time frame.
On June 30, 2000, the AJ dismissed complainant's complaint for failure to
cooperate pursuant to the regulations set forth at 29 C.F.R. � 1614.109(b)
and 29 C.F.R. � 1614.107(a)(7), accordingly. By decision dated November
29, 2000, the agency implemented the AJ's decision. Complainant filed
an appeal with the Commission on December 7, 2000.
An AJ may dismiss complaints within his/her jurisdiction pursuant to
29 C.F.R. � 1614.107(a) on his/her own initiative, after notice to the
parties, or upon an agency's motion to dismiss a complaint. 29 C.F.R. �
1614.109(b).
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides that a complaint may
be dismissed when a complainant has been provided 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 request,
provided that the request included a notice of the proposed dismissal.
In the present case, the record reveals that the AJ sent complainant
a written request to explain why his complaint should not be dismissed
entitled a Show Cause Order on June 14, 2000, ordering him to respond
to the Order and informing him that failure to respond by June 30,
2000, would result in the dismissal of his complaint. The record
further reveals that complainant failed to respond to the notice.
Complainant did not proffer any explanation for his failure to appear
at the hearing or to respond to the AJ's notice. Therefore, we find
that the AJ properly dismissed the complaint for failure to cooperate
pursuant to 29 C.F.R. � 1614.107(a)(7).
Accordingly, the agency's decision to fully implement the AJ's dismissal
decision was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 27, 2001
__________________
Date