01984369
06-09-1999
Leonard J. Uriarte, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Pacific/Western Region Agency.
Leonard J. Uriarte, )
Appellant, )
)
v. ) Appeal No. 01984369
William J. Henderson, ) Agency No. 4F950022097
Postmaster General, )
United States Postal Service, )
Pacific/Western Region )
Agency. )
______________________________)
DECISION
On May 11, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on April 11, 1998,
pertaining to 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 (ADEA), as amended, 29 U.S.C. �621 et seq., and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. In his
complaint, appellant alleged that he was subjected to discrimination
on the bases of race(Hispanic), color(white), religion(Protestant),
sex(male), national origin(Spanish/Basque), age(48 - DOB 6/21/48),
physical handicap (diabetes) and reprisal (prior EEO activity) when on
May 14, 1997, he was refused time on the clock to represent the Union
President, on EEO case number 1F-937-0023-97.
The agency dismissed appellant's allegation pursuant to EEOC Regulation
29 C.F.R. � 1614.107(g), for failure to proceed and failure to cooperate.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(g) provides that an agency shall
dismiss a complaint, or a portion 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.
However, instead of dismissing for failure to cooperate, the complaint may
be adjudicated if sufficient information for that purpose is available.
In the instant case, an affidavit was requested from the appellant by
letter dated January 12, 1998. It was received on January 27, 1998. On
February 10, 1998, the appellant submitted an extension request for an
additional 15 days to respond. The record contains no evidence to show
that appellant responded to the agency's request. In his appeal, appellant
also provided no reason or explanation for his failure to respond.
The Commission has stated that "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 canceled for failure to prosecute/cooperate."
Kroeten v. U.S. Postal Service, EEOC Request No. 05940451 (December 22,
1994) (citation omitted). Based on a review of the record, there is
insufficient information to adjudicate this case. Only one other person
is named in this matter and that person according to the counselor's
report does not recall appellant's request for official time. There is
no mention of witnesses, or any specifics involved in the case. The
record also shows that appellant is familiar with the EEO process and
had notice that indicated that his complaint could be dismissed if he
did not provide requested information. Consequently, the agency properly
dismissed appellant's complaint for failure to prosecute.
CONCLUSION
Accordingly, the agency's decision dismissing appellant's complaint on
the grounds that appellant failed to proceed and failed to cooperate is
hereby Affirmed.
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 (S0993)
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:
June 9, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations