01991042
06-27-2000
Dennis Balogh, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Dennis Balogh v. United States Postal Service
01991042
June 27, 2000
Dennis Balogh, )
Complainant, )
)
v. ) Appeal No. 01991042
) Agency No. 4C-440-0013-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Complainant filed an appeal with this Commission from a final decision of
the agency concerning 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.<1> The final agency decision was received by
complainant on July 12, 1997. The appeal was postmarked July 19, 1997.
The Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,
37,659 (1999)(to be codified at 29 C.F.R. �1614.405).
Complainant contacted an EEO Counselor on September 17, 1996, regarding
claims of discrimination. Specifically, complainant alleged that he
was discriminated against when on September 5, 1996, he was issued a
Notice of Removal for failure to follow instructions. Informal efforts
to resolve complainant's concerns were unsuccessful.
On November 1, 1996, complainant filed a formal complaint alleging that
he was the victim of unlawful employment discrimination on the bases of
race, sex, and reprisal.
The record indicates that complainant's complaint was accepted for
investigation on March 13, 1997 and the investigation was completed
April 28, 1997. By letter dated May 2, 1997, complainant was sent a
copy of the agency's investigative file and complainant was advised of
his right to request either a hearing before an EEOC Administrative
Judge (AJ), or a final decision by the agency, without a hearing.
On May 15, 1997, complainant requested a hearing before an AJ pursuant
to 64 Fed. Reg. 37,644, 37,657 (1999)(to be codified at and hereinafter
referred to as 29 C.F.R. �1614.109(f)).
The record indicates further that by letter dated June 20, 1997
complainant's complaint was remanded to the agency because complainant
and his representative failed to appear for the scheduled pre-hearing
conference. Following the AJ's decision to remand complainant's
complaint, the agency issued a final decision (FAD) on July 10,
1997 dismissing complainant's complaint for failure to cooperate.
Specifically, the agency determined that because complainant failed to
appear for the pre-hearing conference on June 20, 1997, his complaint
should properly be dismissed for failure to cooperate.
Volume 64 Fed. Reg. 37,644, 37, 656 (1999)(to be codified at and
hereinafter referred to as 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 or the complainant's response
does not address the agency's request, 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.
Under the circumstances in this case, we find that the agency's dismissal
was improper. The record indicates that on March 13, 1997, complainant's
complaint was accepted for investigation and on April 28, 1997 the agency
completed its investigation. The record further indicates that the EEOC
AJ assigned to hear complainant's complaint remanded the matter to the
agency because complainant failed to appear for a scheduled pre-hearing
conference. Following the AJ's decision to remand the matter, the agency
in turn, dismissed complainant's complaint for failure to cooperate.
We note, however, that the agency failed to show why it could not issue
a final decision regarding complainant's complaint. The agency has
not claimed that the complaint was vague, and the agency found that
there was sufficient information in the record to be able to define
the complaint and accept it for investigation. Moreover, we note that
complainant's complaint, along with the EEO Counselor's Report, addressed
the incident of alleged discrimination, with reference to the responsible
agency officials by name, the bases on which he alleged discrimination,
and the corrective action sought.
The Commission has held that as a general rule, an agency should not
dismiss a complaint when it has sufficient information on which to base
an adjudication. See Ross v. USPS, EEOC Request No. 05900693 (August 17,
1990); Brinson v. USPS, EEOC Request No. 05900193 (April 12, 1990).
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 dismissed for failure
to cooperate. See Card v. USPS, EEOC Request No. 05970095 (April 23,
1998); Kroeten v. USPS, EEOC Request No. 05940451 (December 22, 1994).
Therefore, under the circumstances, we find that the agency's dismissal
of complainant's complaint for failure to cooperate was improper.
Accordingly, the agency's decision to dismiss complainant's complaint
is hereby REVERSED. The complaint is REMANDED to the agency for further
processing in accordance with this decision and the Order below.
ORDER
Within sixty (60) calendar days from the date this decision becomes
final, the agency shall issue a final decision in accordance with
64 Fed. Reg. 37,644, 37,657 (1999)(to be codified at and hereinafter
referred to as 29 C.F.R. � 1614.110). A copy of the final decision
must be sent to the Compliance Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)
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 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 64
Fed. Reg. 37,644, 37,659-60 (1999)(to be codified and hereinafter referred
to as 29 C.F.R. ��1614.407, 1614.408, and 29 C.F.R. �1614. 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)
(Supp. V 1993). If the complainant files a civil action, the
administrative processing of the complaint, including any petition
for enforcement, will be terminated. See 64 Fed. Reg. 37,644, 37,659
(1999)(to be codified and hereinafter referred to as 29 C.F.R. �1614.409).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (R0400)
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 (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:
June 27, 2000
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
___________ ____________________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.