01A32951_r
08-19-2003
Bruno Laoz, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Bruno Laoz v. United States Postal Service
01A32951
August 19, 2003
.
Bruno Laoz,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32951
Agency No. 1A-007-0024-02
DECISION
Complainant appealed to this Commission from the agency's April 1, 2003
dismissal of his employment discrimination complaint. In his complaint,
complainant alleged that he was subjected to discrimination on the basis
of disability when on July 9, 2002, complainant was forced to retire
due to management's refusal to accommodate complainant's request for
light duty.
The agency dismissed the complaint for failure to cooperate, pursuant
to 29 C.F.R. � 1614.107(a)(7). Specifically, the agency found that
complainant never provided an affidavit to the EEO Investigator as
requested. The agency noted that complainant was given an extension to
return the affidavit due to an illness, but still failed to provide the
information requested.
The record includes a letter from the EEO Investigator to complainant's
attorney, dated January 8, 2003. In this letter, the investigator
requested that complainant answer questions and complete an affidavit
for the investigation. In the letter, the EEO Investigator warned the
attorney that failure to return the affidavit within fifteen (15) days
may result in dismissal of complainant's complaint.
Evidently, complainant's attorney requested an extension to file the
affidavit, because complainant was recovering from a recent illness.
The record does not include a copy of the attorney's request, but it does
include a response from the EEO Investigator, dated February 3, 2003.
Therein, the investigator granted complainant's request for an extension,
and allowed complainant an additional 15 days to return his affidavit.
When complainant failed to respond to the February 3, 2003 letter, the
EEO Investigator sent complainant's attorney a third letter, dated March
5, 2003. In this third letter, the EEO Investigator granted complainant
an additional 15 days to provide his affidavit, but again cautioned the
attorney that her failure to timely respond could result in dismissal
of her client's complaint. The record reveals that both complainant
and his attorney received copies of all three letters.
The regulation set forth at 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 15 days of its receipt, provided that the request
included a notice of the proposed dismissal. The regulation further
provides that, instead of dismissing for failure to cooperate, the
complaint may be adjudicated if sufficient information for that purpose
is available.
In the present case, complainant never responded to several different
requests for an affidavit. In these requests, the agency notified
complainant that his complaint may be dismissed if he fails to respond.
Complainant has failed to adequately explain his failure to respond to
the last two requests from the agency. The Commission also notes that
the investigation of complainant's claim was not complete, and the record
does not contain sufficient information to adjudicate the complaint.
Therefore, the agency's dismissal was proper.
CONCLUSION
Accordingly, the agency's final decision is AFFIRMED.
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 (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
August 19, 2003
__________________
Date