Abel Sanchez, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionApr 1, 1999
01982378 (E.E.O.C. Apr. 1, 1999)

01982378

04-01-1999

Abel Sanchez, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.


Abel Sanchez, )

Appellant, )

)

v. ) Appeal No. 01982378

) Agency No. 4F000001097

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(Pacific/Western Region), )

Agency. )

______________________________)

DECISION

Appellant filed a timely appeal with this Commission from a final

agency decision (FAD) dismissing his 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.; the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and

� 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791

et seq. Appellant alleged that he was discriminated against on the bases

of race (Hispanic), sex (male), age (DOB:10/31/48), mental disability

(depression), physical disability (migraines), and in reprisal for prior

EEO activity when:

(1) he was issued a Letter of Warning in lieu of Time Off Suspension

and a Letter of Decision sustaining the action;

(2) he was not assigned cases in the San Francisco district; he was

assigned specific work hours; and he was restricted from working in

the field;

(3) he was forced to sign Merit Evaluation Goal and Requirements for 1997,

while under restrictions;

(4) he was denied a removal of restrictions on April 11, 1997, and May 5,

1997; and

(5) he was issued a letter from his manager that he is not entitled

to grieve or appeal the issue of merit expectations and his signing of

those expectations under protest.

In its FAD, the agency dismissed these allegations pursuant to 29 C.F.R. �

1614.107(g) for failure to prosecute and/or cooperate.

The record establishes that the agency accepted appellant's formal

complaint for investigation on October 18, 1997. Appellant designated an

attorney to represent him. Consequently, the agency served appellant's

attorney with a written request for an investigative affidavit in order

to proceed with the complaint. The request included notice that the

failure to respond within the specified time frame, fifteen (15) days,

could result in a dismissal of the claim. The certified mail receipt

establishes that appellant's attorney received the request on October

28, 1997. When there was no response, the agency sent a second request

which was received on December 1, 1997. When there was no response to

the second request, the agency dismissed the complaint.

EEOC Regulation 29 C.F.R. � 614.107(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 fifteen (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 proceed,

the complaint may be adjudicated if sufficient information for that

purpose is available. Kroeten v. United States Postal Service, EEOC

Request No. 05940451 (December 22, 1994). 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 cooperate. Id.

On appeal, appellant states that after receiving an extension of time in

which to respond, he submitted the affidavit in question. As a result,

we find that there is no clear pattern of delay or contumacious conduct

by appellant. Furthermore, based on a complete review of the record,

we find that it contains sufficient information upon which the agency

can adjudicate the complaint. In this respect, we note that the record

includes the date of the alleged discriminatory action, the bases on

which the alleged discrimination occurred, the names of the persons

responsible for the alleged discriminatory action, and the location of

the alleged discriminatory action. See Batlle v. United States Postal

Service, EEOC Request No. 05970140 (March 13, 1997).

Accordingly, we VACATE the FAD and REMAND the allegations for further

processing. In so doing, we remind appellant that he is at all times

responsible for the processing of his EEO complaint pursuant to 29

C.F.R. � 1614.605(e).

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. � 1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

of the appropriate rights within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a copy

of the notice that transmits the investigative file and notice of rights

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:

April 1, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations