01A32982_r
08-05-2003
Stuart S. Deutsch, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stuart S. Deutsch v. United States Postal Service
01A32982
August 5, 2003
.
Stuart S. Deutsch,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32982
Agency No. 4A-110-0103-02
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated March 20, 2003, dismissing 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.
Believing that he was the victim of discrimination in reprisal for
prior EEO activity, complainant contacted the EEO office. Specifically,
complainant claimed that he was discriminated against when he was denied
schedule changes during the period June 8, 2002, through July 25, 2002.
On August 31, 2002, complainant filed a formal complaint that addressed
the matters for which he underwent EEO counseling, discussed above.
Following the acceptance of the complaint for investigation in December
2002, the agency issued a final decision on March 20, 2003, dismissing
the complaint for failure to prosecute, pursuant to 29 C.F.R. �
1614.107(a)(7). Specifically, the agency determined that two affidavit
requests were mailed to complainant on January 6 and February 27, 2002,
informing him that failure to respond within fifteen days of receipt could
result in the dismissal of his complaint; that the requests were received
by complainant; but that a response was never sent to the agency.<1>
On appeal, complainant contends that he completed the affidavit request
when he sent his response dated March 12, 2003, to the agency.
In response, the agency notes that it has not received any response
from complainant. The agency further notes that a review of his appeal,
complainant failed to provide an explanation for not responding to the
agency's two requests for an affidavit. The agency requests that the
Commission affirm its final decision.
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides that the agency
shall dismiss 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 fifteen days of its receipt or the response does
not address the agency's request. This regulation also provides that
instead of dismissing a complaint for failure to cooperate, the agency
may render an adjudication if sufficient information for that purpose is
available. In enforcing this regulation, the Commission has previously
held that where the complainant has engaged in delay or contumacious
conduct and the record is insufficient to permit adjudication, the
Commission will affirm the agency's dismissal of a complaint on the
grounds of failure to prosecute. See Delgado v. United States Postal
Service, EEOC Request No. 05900859 (October 25, 1990).
After a review of the record, we find that the agency's decision to
dismiss the complaint for failure to prosecute was improper. On appeal,
complainant asserts that he sent a response to the agency dated March 12,
2003, despite the agency's assertion that no such response was received.
Nonetheless, we find that the record has sufficient evidence for the
agency to adjudicate the complaint without the requested affidavit
especially in light of the March 12, 2003 letter submitted on appeal.
However, although the Commission determines that the instant complaint was
improperly dismissed for failure to prosecute under these circumstances,
we nevertheless advise complainant to cooperate with the agency in the
continued processing of his complaint or face possible future dismissal
of his complaint if he fails to do so.
Accordingly, the agency's dismissal of complainant's complaint is
REVERSED. The complaint is REMANDED to the agency for further processing
in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant 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 (K0501)
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 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 (M0701)
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), 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 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 (R0900)
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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 5, 2003
__________________
Date
1The Commission determines that the agency inadvertently dated the second
affidavit request as February 7, 2002, instead of February 27, 2002.