01A31647_r
05-15-2003
Larry Prazak, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Larry Prazak v. United States Postal Service
01A31647
May 15, 2003
.
Larry Prazak,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31647
Agency No. 1E-853-0073-02
DECISION
Upon review, the Commission finds that the agency's decision dated
November 20, 2002, dismissing complainant's complaint for failure to
cooperate is improper, pursuant to 29 C.F.R. � 1614.107(a)(7).
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race, sex, religion, and reprisal for
prior EEO activity when on June 20, 2002, complainant became aware that
another employee was sent to a Power Lifting Class and complainant was
not provided this training; and, on July 10, 2002, a supervisor (S1)
threatened to take complainant "out with one punch."
The record indicates that the agency accepted the complaint for
investigation. In order to proceed with its investigation, an
Investigator sent a letter, including affidavit forms, to complainant
on two occasions, requesting that he submit his affidavit concerning
his complaint within 15 days of his receipt of the letter, otherwise
his complaint will be dismissed for failure to cooperate. Complainant
received the agency's letters dated September 20, 2002, and October 15,
2002, on September 24, 2002, and October 17, 2002, respectively, but he
did not respond to them nor did he submit his affidavit as requested.
On appeal, complainant states that he did not return the affidavit
forms because he does not believe the agency is capable of conducting
a fair, unbiased and impartial investigation regarding one of their
own supervisors. Complainant states that following the July 10, 2002
incident he wrote a statement, called postal inspectors and informed his
supervisor. Complainant argues that S1 was never placed on emergency
off-duty status, nor was complainant ever questioned by anyone from
management regarding the incident. When complainant asked an official
from the agency's Threat Management Team about the incident, complainant
claims the official knew nothing about it. Moreover, complainant states
that S1 had been involved in previous acts of violence. Accordingly,
complainant requests that a third party be assigned to investigate
his complaint.
In view of the arguments on appeal and the totality of circumstances in
this case, we find that the agency's dismissal was improper. We note,
that while the complainant has twice failed to provide the requested
investigative affidavit, the agency has not shown that complainant's
affidavit is necessary for the further processing of the 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 official 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 Card v. United States Postal Service, EEOC Request
No. 05970095 (April 23, 1998). Therefore, under the circumstances, we
find that the agency's dismissal of complainant's complaint for failure
to cooperate was improper.
Accordingly, we REVERSE the agency's dismissal of the complaint pursuant
to 29 C.F.R. � 1614.107(a)(7). We REMAND the complaint to the agency
for further processing as directed herein.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant 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 complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (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
May 15, 2003
__________________
Date