0120112729
10-11-2011
Babette C. Wray, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Babette C. Wray,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120112729
Agency No. 1C-431-0011-11
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the Agency's decision dated March
18, 2011, dismissing 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., and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant
was a Mail Processing Clerk at the Agency’s Columbus Processing &
Distribution Center facility in Columbus, Ohio. On January 7, 2011,
she filed a formal complaint alleging that the Agency subjected her to
discrimination based on her race (African-American/Black), color (tan
vitaligo skin disorder), age (60), and reprisal for prior EEO activity
when she on November 12, 2010, she was sent home for no work available
within her restrictions due to the National Reassessment Program (NRP).1
Following an investigation, the Agency dismissed the complaint for
failure to cooperate, citing 29 C.F.R. § 1614.107(a)(7). This regulation
provides that:
Prior to a hearing in a case, the agency shall dismiss an entire 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 15 days of its
receipt…provided the request included a notice of proposed dismissal.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
By letter dated January 31, 2011, a contact investigator directed
Complainant to complete an affidavit form. The contract investigator
advised Complainant that the completed form must be returned by
mail within 15 calendar days of receipt of the letter. The contract
investigator recounted the above regulation, and warned that the letter
served as a 15 day notice that if Complainant did not proceed with the
complaint by providing the information requested, her complaint would
be dismissed for failure to cooperate.
Following receipt of the letter, Complainant did not provide an affidavit.
On March 18, 2011, the Agency dismissed Complainant’s complaint for
failure to cooperate. It reasoned that on January 31, 2011, Complainant
was asked to clarify her allegations, she did not respond, and she has
not provided sufficient information to allow a thorough investigation
of her complaint.
CONTENTIONS ON APPEAL
On appeal Complainant contends that her right wrist became so painful
that she could not timely continue, and her hands were worn out for a
period of time. She argues that she was discriminated against, and asks
to be allowed to continue her case.2
In opposition to the appeal, the Agency asks the Commission to affirm
its dismissal.
ANALYSIS AND FINDINGS
The claim in Complainant’s complaint was not vague, and the contract
investigator, with the exception of Complainant’s affidavit, completed
the investigation. The Commission has held that as a general rule,
an agency should not dismiss a complaint when Complainant’s conduct
is not contumacious and the Agency has sufficient information upon
which to base an adjudication. Ross v. United States Postal Service,
EEOC Request No. 05900693 (Aug. 17, 1990). Such is the case here.
Accordingly, the Agency’s dismissal is REVERSED.
ORDER
Within 30 calendar days of the Agency’s receipt of this decision, it
shall issue to Complainant a copy of the investigative file and also
notify her of right to request a hearing and a decision from an EEOC
administrative judge or request an immediate final Agency decision.
If Complainant requests a final decision without a hearing, the Agency
shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.
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 (K0610)
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 77960, Washington, DC
20013. 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.
COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
October 11, 2011
__________________
Date
1 Complainant also alleged disability as a basis of discrimination.
The Agency split off the disability claim under separate complaint number
1C-431-0007-11, and placed it in “abeyance” because it falls within
pending class action complaint McConnell et al., v. United States Postal
Service (Agency No. 4B-140-0062-06). It was appropriate to subsume
the disability claim into the above pending class action.
2 In Wray v. United States Postal Service, EEOC Appeal No. 0120063964
(Nov. 20, 2006), the Commission reversed the Agency’s closure of
three prior EEO cases, and ordered the Agency to resume processing
of them. On appeal, Complainant refers to this, and writes these
cases were never been resolved. If Complainant is contending that the
Agency failed to comply with the order in EEOC Appeal No. 0120063964,
she should contact EEOC, Office of Federal Operations (OFO) Compliance
Officer, using the address in the letterhead of this decision. The EEOC
OFO compliance number on EEOC Appeal No. 0120063964 was Compliance
No. 0620070085. Complainant should refer to Compliance No. 0620070085
in any correspondence about the Agency’s failure to comply with the
order in EEOC Appeal No. 0120063964.
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0120112729
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112729