01A24525_r
01-09-2003
Kathy K. Schmidt, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kathy K. Schmidt v. United States Postal Service
01A24525
January 9, 2003
.
Kathy K. Schmidt,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24525
Agency No. 4E-852-0144-01
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated July 8, 2002, 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.
In her formal complaint, complainant alleged that she was subjected to
discrimination on the bases of race, sex, age, and in reprisal for prior
protected activity when:
(1) on May 1, 2001 and June 20, 2001, she became aware that she was not
given OIC assignments;
(2) on or about May 7, 2001, she was not selected for an interview for
the Flagstaff Postmaster position;
(3) on June 5, 2001, she was not selected as the Ocotillo Station
Manager in Chandler; and
(4) on June 8, 2001, she was removed from teaching the Associate
Supervisor Program.
Thereafter, complainant's complaint was accepted for investigation.
However, on July 8, 2002, the agency dismissed the complaint pursuant
to 29 C.F.R. � 1614.107(a)(7), for failure to cooperate. Specifically,
the agency determined that it mailed two requests for an affidavit to
complainant on April 19, 2002, and May 24, 2002. The agency stated that
complainant received the first request for an affidavit on May 7, 2002,
which informed her that she should respond within fifteen (15) days of
receipt of the request. The agency noted that complainant failed to
respond to this request. The agency stated that it sent complainant
a second request for an affidavit on May 24, 2000. The agency noted
that the second request also informed complainant that she must respond
within fifteen (15) days of receipt or her complaint could be dismissed
for failure to cooperate. The agency claimed that to date complainant
has failed to respond to the second request.
The agency further claimed that the investigator received a note from
complainant stating that she mailed the requested affidavit by certified
mail 7002 0510 0002 2018 2448, but that the agency never received it.
Furthermore, the agency stated that there is no record of that certified
number in the system.
Complainant presents no contentions on appeal.
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 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.
The record reflects that complainant asserted to an agency investigator
that the requested affidavit had been transmitted by certified mail;
although the agency determined that there is no record of receipt of
this correspondence. Given these circumstances, we determine that the
record does not support a finding that complainant's purported actions
warrant dismissal of her complaint for failure to cooperate.
Though the Commission presently determines that the instant complaint was
improperly dismissed for failure to cooperate, we nevertheless advise
complainant to cooperate with the agency in the continued processing
of her complaint or face possible future dismissal of her complaint on
these grounds.
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
The agency is ORDERED to resume processing of complainant's complaint
from the point where processing ceased. The agency shall acknowledge to
complainant that it has reinstated and resumed processing of complainant's
complaint.
A copy of the agency letter of acknowledgement must be sent to the
Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 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.
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 (R0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 9, 2003
__________________
Date