01984995
06-29-1999
Sharon D. Cushon, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Sharon D. Cushon v. United States Postal Service
01984995
June 29, 1999
Sharon D. Cushon, )
Appellant, )
)
v. ) Appeal No. 01984995
) Agency No. 1-I-641-1015-95
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
In a formal complaint dated March 22, 1995, appellant alleged that she
was subjected to discrimination in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq. and �501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. on the
bases of race (African-American), color (brown), sex (female), disability
(unspecified) and in reprisal for prior EEO activity when on December 2,
1994, appellant was harassed by her manager. In a final agency decision
(FAD) dated June 24, 1996, the agency dismissed the allegation for
failure to state a claim. In Cushon v. United States Postal Service,
EEOC Appeal No. 01966021 (Dec. 10, 1997), the Commission vacated the
agency's decision and ordered the agency, inter alia, to meet with
appellant to define the allegations in her complaint.
In a FAD dated May 5, 1998, the agency dismissed appellant's complaint
pursuant to EEOC Regulation 29 C.F.R. �1614.107(g), for failure to
cooperate. Specifically, the agency found that appellant failed to
respond to a letter dated February 11, 1998, instructing appellant
to contact an EEO Counselor within fifteen (15) days and set up an
appointment for a meeting to define the allegations in appellant's
complaint. On June 7, 1998, appellant filed an appeal with the Commission
from the May 5, 1998 FAD.<1>
On appeal, appellant argues that on February 17, 1998, she received
the letter instructing her to contact the agency within fifteen days.
Appellant contends that she contacted the agency on March 2, 1998, by
phone, but was told that the counselor handling her complaint was in
training for three (3) weeks. Appellant claims that she was told that
the counselor would call appellant back when the counselor returned.
Appellant notes that she was not referred to another counselor to
discuss her complaint. Appellant then argues that she met with the
counselor regarding a different complaint on May 22, 1998, and asked if
her message had been received. According to appellant, the counselor
denied receiving a message to call appellant.
The record includes a copy of the agency's request for information,
dated February 11, 1998. The request instructs appellant to contact a
counselor and set up a meeting to discuss the contours of her complaint,
and warns appellant that failure to contact the agency within fifteen
(15) days may result in dismissal for failure to cooperate.
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.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
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).
Upon a review of the record, the Commission finds that dismissal for
failure to prosecute is not proper at this time. Appellant claims that
she attempted to contact the counselor, but that the counselor never
got back in touch with her. The agency has provided no affidavit or
other evidence to rebut appellant's statements. Given that appellant
attempted to respond to the agency's letter, appellant has not engaged in
contumacious conduct which would warrant the dismissal of her complaint
for failure to cooperate/prosecute. The Commission notes, however,
that appellant and the agency must define the allegations in appellant's
complaint before processing of the complaint can proceed. Accordingly,
the agency's decision is REVERSED, and the complaint is REMANDED for
further processing as ordered herein.
ORDER
The agency is ORDERED to take the following actions:
The agency shall schedule in writing a meeting between appellant and an
EEO Counselor so an agreement can be reached on the issues in appellant's
March 22, 1995 complaint. After the meeting(s), the Counselor must
issue a new Counselor's report concerning the meeting(s) and defining
the issues and bases in appellant's complaint. Appellant shall not be
required to refile her March 22, 1995 complaint.
The Counselor shall have appellant identify with specificity the
nature of the alleged incidents of November 21, 1994; November 22,
1994; and December 2, 1994, purportedly involving the manager and
appellant. Appellant shall also specify all dates on which the manager
allegedly followed her and made specified allegedly discriminatory
remarks, and the nature, frequency, and duration of such alleged behavior,
all locations in which such behavior allegedly occurred, and the contents
of all allegedly discriminatory remarks by the manager to appellant.
Appellant shall distinguish each alleged incident involving the manager
by date of occurrence. Appellant shall also indicate whether each
alleged incident is being presented as a live allegation or as background
information and argument intended to support her live allegations.
Appellant shall further provide evidence as to whether and when her
allegations against the manager, between November 21, 1994, and December
2, 1994, resulted in grievances, EEO complaints, and/or settlements,
and the outcome of such proceedings.
If the agency and appellant cannot reach an agreement on a definition
of the issues in appellant's complaint, then the agency shall issue
a FAD defining the complaint. Such a FAD must explicitly define all
the allegations in the complaint, i.e., the agency shall not dismiss
allegations, de facto, by failing to define or address allegations.
The FAD shall include appeal rights to the Commission.
The agency shall notify appellant in writing of all allegations, if any,
it is accepting for investigation. If the agency wishes to dismiss any
allegations, then it must issue a FAD doing so, with appeal rights to
the Commission. Such a FAD must list all allegations being dismissed
and provide the legal grounds and evidence the agency has relied on in
dismissing any allegations.
The agency shall complete all the above actions, including the issuance of
the FAD, within forty-five (45) calendar days of the date this decision
becomes final. A copy of the agency's letter to appellant arranging
a meeting with an EEO Counselor, and a copy of the acceptance letter
and/or FAD issued pursuant to instruction (5) and/or (6) above 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 29, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The agency was unable to supply a copy of a certified mail return receipt
or any other material capable of establishing the date appellant received
the agency's final decision. Accordingly, since the agency failed to submit
evidence of the date of receipt, the Commission presumes that appellant's
appeal was filed within thirty (30) days of receipt of the agency's final
decision. See, 29 C.F.R. �1614.402.