0120102865
12-16-2010
Lawrence L. Ellis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Western Area), Agency.
Lawrence L. Ellis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120102865
Agency No. 1G772003309
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated May 24, 2010, dismissing his 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. Upon review, the Commission
finds that Complainant's complaint was improperly dismissed.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him to
discrimination on the bases of race (African-American) and disability
(Unspecified) when, on August 13, 2009, he took a typing and a clerical
test and was subsequently rated ineligible for both tests.
The agency commenced an investigation on the complaint and, on March 26,
2010, sent complainant a request for an affidavit along with instructions
and forms for completing the affidavit. In its May 25, 2010 final
decision, the agency dismissed the complaint pursuant to 29 C.F.R. �
1614.107(a)(7) for failure to cooperate, arguing that complainant
failed to return the requested affidavit despite a written warning in
the affidavit packet sent to him that failure to provide the affidavit
could result in the dismissal of his complaint.
ANALYSIS AND FINDINGS
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.
Under the circumstances in this case, we find that the Agency's
dismissal was improper. The record indicates that on March 29, 2010,
Complainant received a memorandum from the Agency requesting that he
furnish an affidavit and indicating that failure to do so within 15 days
would result in dismissal of his complaint. According to the Agency,
Complainant failed to furnish his affidavit within the requisite time
frame, and therefore, his complaint should be dismissed for failure
to cooperate. We note, however, that the Agency failed to show why
Complainant's affidavit was 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. And
notably, the record reflects that an investigative report was prepared,
albeit without Complainant's affidavit, which contains statements from
responding management officials involved in this matter.
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 Ross v. U.S. Postal Serv., EEOC Request No. 05900693
(August 17, 1990); Brinson v. U.S. Postal Serv., EEOC Request No. 05900193
(April 12, 1990). It is only in cases where the complainant has engaged
in delay or contumacious conduct and the record is insufficient to
permit adjudication that the Commission has allowed a complaint to be
dismissed for failure to cooperate. See Card v. U.S. Postal Serv., EEOC
Request No. 05970095 (April 23, 1998); Kroeten v. U.S. Postal Serv.,
EEOC Request No. 05940451 (December 22, 1994). Therefore, under the
circumstances, we find that the agency's dismissal of Complainant's
complaint for failure to cooperate was improper.
Accordingly, we conclude that the Agency should have allowed for
an adjudication on the merits rather than dismissing the complaint.
The complaint is hereby remanded to the Agency for further processing
in accordance with this decision and the Order below.
ORDER
Within thirty (30) calendar days of the date this decision becomes final,
the Agency is ordered to issue the completed investigative report to
Complainant with a notice of right to request a hearing in accordance
with 29 C.F.R. � 1614.108(f). If Complainant does not timely request a
hearing, the Agency shall, within sixty (60) calendar days, issue a final
decision on the merits of the instant complaint, pursuant to 29 C.F.R. �
1614.110(b), based on the evidence gathered during the investigation.
A copy of the Agency's notice of transmittal of the investigative report
and notice of right to request a hearing must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington,
DC 20013. 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 (M0610)
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), at 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
77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court
that the Court appoint an attorney to represent you and that the Court
also 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 with the Court 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
December 16, 2010
__________________
Date
2
0120102865
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120102865