01983757
06-23-1999
Rosalind G. Harris Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Rosalind G. Harris v. United States Postal Service
01983757
June 23, 1999
Rosalind G. Harris )
Appellant, )
) Appeal No. 01983757
v. ) Agency No. 1F-901-0014-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning her 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 final agency decision was dated March
30, 1998. The appeal was postmarked on April 8, 1998. Accordingly,
the appeal is timely (see 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to proceed and for failure to cooperate.
BACKGROUND
Appellant filed a formal complaint on November 5, 1997, alleging
discrimination on the basis of sex (female) because she was harassed
when: (1) a manager told her that she should be placed over his knee and
spanked; (2) a manager continually watched her and checked the parking
lot for her car; (3) her assignment changed; (4) she was referred to
the Employee Assistance Program (EAP); (5) she was issued a letter of
warning; and (6) her rest days were changed.
The complaint was accepted for investigation on November 12, 1997.
The EEO Counselor, who was assigned to investigate the complaint, sent
appellant's attorney two requests for relevant information. The first
written request was received by appellant's attorney on January 8, 1998
and the second written request was received by appellant's attorney
on February 10, 1998. Each request informed appellant that failure
to provide the requested information within fifteen days could result
in dismissal of the complaint. Neither the appellant nor her attorney
responded to the requests.
In its FAD, the agency dismissed the complaint for failure to proceed
and for failure to cooperate because of the lack of response to their
requests for relevant information. This appeal followed.
In her statement on appeal, appellant asserted that, on November 26,
1997, she called the EEO Counselor (E-1) whose name was on a previous
correspondence and requested that all correspondence be sent directly
to her and not through her attorney. E-1 told the appellant that she
would make a note in appellant's file. On January 5, 1998, appellant
asserts that she again called E-1 and inquired as to why she had not
received any information on her case since November, 1997. According to
appellant, E-1 told her that the process took time, but that she would
hear something within 180 days. E-1 also informed her that another EEO
Counselor would be taking over her case.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(c) provides that the agency shall
dismiss a complaint or a portion of a complaint when 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.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information is available for that purpose.
The Commission previously has held that the above regulation is applicable
"only in cases where there is a clear record of delay or contumacious
conduct by the complainant." See Anderson v. United States Postal
Service, EEOC Request No. 05940850 (February 24, 1995).
Upon review, we note that, on appeal, the agency did not specifically
respond to appellant's assertion that E-1 told her that she would note
in appellant's file that all correspondence should be sent directly to
appellant, and not to her lawyer. The Commission fails to find sufficient
grounds for dismissal of the matter for failure to cooperate and failure
to proceed. The record, as it stands, contains no persuasive evidence
of delay or contumacious conduct on appellant's part with regard to the
processing of her complaint. See Kroeten v. United States Postal Service,
EEOC Request No. 05940451 (December 22, 1994). The Commission finds,
therefore, that the agency improperly dismissed the instant complaint
for failure to cooperate and failure to proceed.
CONCLUSION
Accordingly, the decision of the agency is REVERSED and REMANDED for
further processing in accordance with the Order set forth below.
ORDER (E1092)
The agency is ORDERED to process the remanded complaint in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded complaint within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days of
the date that this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgement to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
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. 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 23, 1999
______________ __________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations