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