01995823
07-17-2000
Laverne Richardson-Kelley, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Laverne Richardson-Kelley v. United States Postal Service
01995823
07-17-00
Laverne Richardson-Kelley, )
Complainant, )
)
v. ) Appeal No. 01995823
) Agency No. 1J607106694
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
____________________________________)
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from the
agency's final decision dated June 8, 1999, dismissing her complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. Section 2000e et seq.,
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq, and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1> 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).
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed complainant's
claim for failure to cooperate by obstructing the complaint process.
BACKGROUND
After timely contacting an EEO Counselor, complainant filed a formal
complaint on May 15, 1995, alleging denial of family medical leave,
denial of pay for a work related injury, and disparate treatment in
violation of Title VII, the ADEA, and the Rehabilitation Act. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of race (black), color (light skinned), sex (female), age
(DOB: 9/22/45), physical disability (electrical shock to the left hand),
and reprisal (prior EEO activity) when:
on December 2, 1993, the superintendent denied her request for family
medical leave and refused to pay her for an on-the-job injury; and
treated complainant differently than similarly situated male employees.
Complainant filed a timely appeal with this Commission from the agency's
final decision dated June 8, 1999, dismissing her complaint of unlawful
employment discrimination for failure to prosecute the complaint pursuant
to EEOC Regulation 29 C.F.R. � 1614.107(a)(7).
ANALYSIS AND FINDINGS
The regulation set forth at 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter cited 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.
Under the circumstances in this case, we find that the agency's dismissal
was proper. The record indicates that complainant received memoranda
from the agency requesting that she provide an affidavit on May 4,
1999, March 3, 1999, and August 3, 1998. All three of the agency's
requests indicate that complainant was warned that failure to supply said
information within 15 days would result in dismissal of her complaint.
According to the agency, complainant failed to furnish her affidavit, and
therefore, her complaint should be dismissed for failure to cooperate.
The EEOC Regulation at 29 C.F.R. � 1614.107(a)(7) further provides that,
instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
However, we find that the formal complaint and EEO Counselor's Report
alone provide insufficient information to allow the agency to properly
investigate and process the complaint without supplemental information.
For example, in the second issue, complainant failed to furnish the
agency with the incidents that were allegedly discriminatory. Moreover,
in her appeal complainant fails to proffer any statement justifying why
she neglected to provide the agency with the requested documentation.
Thus, we find that the agency properly dismissed complainant's claim
for failure to cooperate.
CONCLUSION
The Commission AFFIRMS the agency's final decision dismissing her
complaint due to complainant's failure to cooperate with the agency in
processing her complaint.
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:
07-17-00 ____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
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.