01983631
05-28-1999
Gerald C. Cortez, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency
Gerald C. Cortez, )
Appellant, )
) Appeal No. 01983631
v. ) Agency No. 4F-950-0147-97
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency )
)
DECISION
INTRODUCTION
Appellant timely filed an appeal with the Equal Employment Opportunity
Commission (Commission) from a final agency decision 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, the Age Discrimination in Employment Act of 1967, as amended, 29
C.F.R. Section 621 et seq. and �501 of the Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq.. Accordingly, the appeal is accepted
in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to proceed and failure to cooperate.
BACKGROUND
Appellant filed a formal complaint alleging discrimination on
the basis of age (DOB 6/15/47), sex (male), physical disability
(arthritis/neuroma/tendinitis/heart condition/knee pain/hypertension/and
torn meniscus on left knee), mental disability (depression), and reprisal
(prior EEO activity) when a supervisor left a telephone message on
appellant's home recorder; told him to return to work; authorized
limited duty accommodations without written confirmation from appellant's
doctor; and breached his medical confidentiality by calling his doctor;
management forced appellant to work outside his medical restrictions;
the acting supervisor told appellant to "scoot" and continued to make
him work outside his medical restrictions; and a regular letter carrier
who was out of uniform was allowed on the workroom floor after appellant
was told that in the future he had to be in uniform.
Appellant's complaint was accepted for investigation and assigned to an
EEO Counselor/Investigator. On September 27, 1997, appellant submitted
a letter requesting a 60 day extension to submit an affidavit<1> and
signed an Agreement to Extend the 180 Day Investigation Process.
On October 28, 1997, the Investigator sent appellant a written affidavit
request which advised appellant that he was required to provide relevant
information in order for the agency to proceed with the investigation,
and that failure to return the completed affidavit within 15 days could
result in dismissal of his case pursuant to 29 C.F.R. �1614.107(g).
Appellant received the notice and affidavit on November 12, 1997.
The agency issued a final decision on February 13, 1998, finding that
appellant failed to respond during the prescribed time. The agency
dismissed the complaint for failure to proceed and failure to cooperate,
noting that appellant received numerous EEO forms each containing language
stating that failure to provide requested information could result in
dismissal of the complaint.
On appeal, appellant submitted letters from two doctors. The first doctor
stated he had followed appellant closely since February 1, 1996, for his
worker's compensation claim. The doctor stated that during that time
appellant's depression was so severe that he was unable to do paperwork.
The doctor believed appellant could not comply with the EEO deadlines.
The second doctor stated he began treating appellant on March 16,
1998 for symptoms of depression, and believes appellant's symptoms,
which include sleep difficulty, tearfulness, decreased motivation,
slowed speech and behavior, and low self-esteem, have been present for
approximately 15 months. The doctor noted that appellant was hospitalized
for treatment of these symptoms in April 1997. He stated that in his
opinion, appellant's symptoms may well have detrimentally affected his
ability to timely submit documentation.
ANALYSIS AND FINDINGS
An agency may dismiss an allegation or complaint for failure to cooperate
only as provided for in EEOC Regulation 29 C.F.R. �1614.107(g). The
agency must provide appellant with a notice of proposed cancellation that
requests that appellant either submit certain information or otherwise
proceed with the complaint. Where the complainant fails to satisfy the
agency's request, the agency may cancel the allegation or complaint.<2>
A complainant's EEO rights are to be preserved whenever possible. See
generally Love v. Pullman, Inc., 404 U.S. 522 (1972). An agency's
decision to invoke the provisions of 29 C.F.R. �1614.107(g) should
be reached only where there is a clear record of delay or contumacious
conduct by the complainant. Connally v.Papachristid Shipping Ltd., et al.,
504 F.2d 917 (5th Cir. 1974). The Connally decision made it clear that
"except in the most flagrant circumstances ... the trial court ought not
to resort to sanctions which deprive the litigant of his opportunity to
pursue his claim." Id. At 90.
No record of flagrant circumstances or contumacious conduct exists in this
case. The Commission is persuaded by appellant's medical documentation
that his mental condition created extenuating circumstances which explain
appellant's failure to respond to the request for information within
the prescribed time limit.
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaint
is REVERSED and REMANDED for further processing in accordance with this
decision and applicable regulations.
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:
May 28, 1999
______________ ___________________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations
1 Appellant stated that he wanted the extension of time "to allow
gathering of information for the affidavit," and explained that he
was taking multiple medications for stress, depression, anxiety and
panic attacks. Appellant stated that he suffers from an inability to
concentrate and short term memory loss.
2 The agency may adjudicate the allegation or complaint if the record
contains sufficient information to do so.