01984100_r
06-23-1999
Vernell Randle, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Vernell Randle, )
Appellant, )
)
v. ) Appeal No. 01984100
) Agency No. 1-F-957-0027-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Appellant filed a formal complaint, dated February 12, 1998, alleging that
she was subjected to discrimination on the basis of reprisal for prior
EEO activity in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. when on November 5, 1997, appellant
was informed that she would not be compensated for her uniform/clothing
allowance for 1995. On February 18, 1998, the agency issued a notice of
processing, accepting appellant's complaint. In a letter dated March
3, 1998, the agency investigator requested that appellant provide an
affidavit, and warned that appellant's complaint would be dismissed
pursuant to EEOC Regulation 29 C.F.R. �1614.107(g), if appellant failed
to respond within fifteen (15) days. When the March 3, 1998 letter
was returned undelivered after three attempts, the agency dismissed
appellant's complaint in an April 3, 1998 final agency decision (FAD)
for failure to prosecute her complaint pursuant to EEOC Regulation 29
C.F.R. �1614.107(g). On May 1, 1998, appellant filed the present appeal.
In its FAD, the agency found that after appellant's complaint was
accepted, the request for an affidavit was not deliverable to appellant's
address of record. Further, the agency noted that appellant had a
obligation to notify the agency EEO office of any change of address,
and had received a booklet entitled �What You Need to Know About EEO,�
which warned appellant that failure to notify the agency of a change in
address could result in dismissal.
On appeal, appellant argues that her address of record did not change,
but that appellant was unavailable to pick-up her mail because of a
family crisis. Further, appellant notes that she often was unable to
pick up certified mail during regular business hours, and that in prior
complaints the EEO office delivered correspondence to appellant at her
work location when appellant was unable to pick-up certified mail at
her address of record.
The record contains a copy of the March 3, 1998 request and accompanying
affidavit questions. The agency requested information regarding the basis
for appellant's complaint, the exact nature of his complaint, and other
background information. Appellant's formal complaint and Counselor's
Report provided the names of the responsible agency officials, the basis
of appellant's complaint, a description of the allegedly discriminatory
incident, and answers to specific questions (attached to the Counselor's
Report) which were asked again in the March 3, 1998 request.
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.
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).
Further, the Commission had 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. United States Postal
Service, EEOC Request No. 05900693 (August 17, 1990); Brinson v. United
States Postal Service, EEOC Request No. 05900193 (April 12, 1990).
Although the agency usually can require a complainant to provide an
affidavit for the investigation of his complaint, dismissal for failure
to provide such an affidavit is improper where the affidavit would not
provide any new information that was not already included in the record.
See Brinson v. United States Postal Service, EEOC Request No. 05900193
(April 12, 1990).
In the present case, the Commission finds that the information solicited
in the requested affidavit was the same clarifying information previously
provided in appellant's informal and formal complaints. Furthermore,
we note that the agency failed to show why appellant'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. Allen v. United States
Postal Service, EEOC Appeal No. 01975234 (March 31, 1998) (finding that
dismissal was improper where appellant failed to respond to two requests
for affidavits, but the affidavits only asked for the same information
previously provided). Accordingly, the agency's dismissal of appellant's
complaint is REVERSED, and appellant's complaint is REMANDED for further
processing in accordance with the Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations 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 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 acknowledgment 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