01a01618
05-31-2000
Elizabeth L. Ricks, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Elizabeth L. Ricks, )
Complainant, )
)
v. ) Appeal No. 01A01618
William J. Henderson, ) Agency Nos. 4-J-606-0151-97
Postmaster General, ) 4-J-606-0188-97
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On December 11, 1999, complainant filed a timely appeal with this
Commission from an agency decision received by her on dated October 22,
1999, pertaining to her 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. and Section 501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. � 791 et seq.<1> In her complaint, complainant
alleged that she was subjected to discrimination on the bases of sex
(female), mental disability (not specified), and in retaliation for
prior EEO activity when on January 2, 1997:
Complainant was not allowed to rotate into other clerk positions;
Complainant was having problems with unscheduled absences;
Complainant was not allowed to use the entrance to the bulk mail room
door;
Complainant was harassed at work;
The agency dismissed complainant's complaint pursuant to the regulation
set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and
hereinafter referred to as 29 C.F.R. � 1614.107(a)(7)), for failure
to cooperate. Specifically, the agency stated that it sent complainant
four requests for affidavits on June 25, 1997, June 29, 1998, March 4,
1999, and September 1, 1999. The agency stated that complainant failed to
provide information to clarify the issues in her complaint and therefore,
argued that complainant's complaint should be dismissed for failure to
cooperate.
The record reveals that the agency sent complainant and/or her
representative several affidavit requests. The record contains an
affidavit request dated June 25, 1998, with the signature of complainant's
representative on the certified mail receipt card indicating that it was
received on June 27, 1998. Another affidavit request is dated June 29,
1998, but there is no indication that complainant or her representative
received this request. The record contains a third affidavit request
dated March 4, 1999, with a certified receipt card signed by complainant
indicating that the request was received by complainant on March 22, 1999.
Finally, the record contains an affidavit request dated September 1, 1999,
and a certified receipt card with complainant's signature, indicating that
it was received on September 20, 1999. We note that the affidavit request
dated September 1, 1999, informed complainant that her failure to respond
within fifteen (15) calendar days from receipt of the request could
result in the dismissal of her complaint for failure to cooperate.
With regard to the complaint, we find that the agency's October 22, 1999
decision dismissing the claims for failure to cooperate is proper pursuant
to 29 C.F.R. �1614.107(a)(7). The record reveals that as early as October
12, 1997, the agency requested clarification of the issues raised by
complainant. The record shows that the three affidavit requests received
by complainant and/or her representative specifically ask complainant to
identify who denied her rotation in other clerk positions, indicate the
dates she was denied entrance at the bulk mail room door and when she was
given unjust absences, and clarify her harassment claim. In addition,
the affidavit request dated September 1, 1999, informed complainant that
failure to respond within fifteen (15) calendar days from receipt of
the request could result in the dismissal of her complaint for failure
to cooperate. Complainant failed to clarify the complaint despite the
agency's repeated request for clarification. Without such clarification,
the claims are insufficiently precise to permit further processing.
Accordingly, the agency's decision dismissing the complaint was proper
and is AFFIRMED.
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 (S0400)
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:
May 31, 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 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.