01A32984_r
09-09-2003
Wilhelmina H. Vandermeulen, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Wilhelmina H. Vandermeulen v. United States Postal Service
01A32984
September 9, 2003
.
Wilhelmina H. Vandermeulen,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32984
Agency No. 4G-780-0236-02
DECISION
Complainant filed a timely appeal with this Commission from the
final agency decision dated March 6, 2003, dismissing her complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
In her formal complaint, filed on October 7, 2002, complainant alleged
that she was subjected to a hostile work environment on the bases of
national origin (Non-Hispanic), sex (female), religion (Catholic), and
age (D.O.B. 12/5/51) when from April 1, 2002 to September 30, 2002, she
was singled out regarding work hours, expectations, working conditions,
work environment, workplace requirements, terms of employment and
safety. Complainant further claimed that the agency violated �almost
every aspect� of matters relating to her employment and safety, and
categorized the agency's purported actions as �hostile and disparate
treatment in the workplace.�
In its final decision, dated March 6, 2003, the agency dismissed
the complaint for failure to state a claim and on the alternative
grounds of failure to cooperate. Regarding the dismissal for failure to
cooperate, the agency determined that two affidavit requests were mailed
to complainant on January 28, 2003 and February 12, 2003, informing her
that failure to respond within fifteen days of receipt could result in
the dismissal of her complaint, but that a response was never sent to the
agency. Further, the agency found that without further information, the
record contained insufficient evidence to process complainant's complaint.
On appeal, complainant submits several copies outlining the alleged
incidents of discrimination and hostile work environment she was subjected
to by several named management officials that continued to the point
when she filed her complaint. Complainant further acknowledges receiving
the agency's January 28, 2003 affidavit request but states that she was
unable to provide an affidavit within the fifteen-day time frame due to
a six-day work schedule and her mother's poor health.
The regulation set forth at 29 C.F.R. � 1614.107(a)(7) provides for the
dismissal 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 regulation further provides that,
instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
The Commission has 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). 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 dismissed for failure to cooperate. See Card
v. United States Postal Service, EEOC Request No. 05970095 (April 23,
1998); Kroeten v. United States Postal Service, EEOC Request No. 05940451
(December 22, 1994).
Upon review, we find that the agency's dismissal was improper. The agency
notes in its final decision that, by two agency requests, dated January
28, 2003, and February 12, 2003, complainant was directed to provide an
affidavit relating to her complaint. We note that complainant, on appeal,
acknowledges that she received the agency's affidavit request dated
January 28, 2003, but did not provide an affidavit due to her six-day
work schedule and her mother's poor health. Regarding the February 12,
2003 notice, the record contains no copy of a certified mail return
receipt of any other material capable of establishing that complainant
received the agency's second affidavit request. We find that the record
does not support the agency's dismissal of complainant's complaint for
failure to prosecute. Complainant is advised, however, to cooperate
in the continuing processing of her complaint or face possible future
dismissal on these grounds.
Finally, we determine that the agency improperly dismissed the instant
complaint on the alternative grounds of failure to state a claim. A fair
reading of the record in this case reflects that complainant addresses a
purportedly hostile work environment that continued at least up to the
point that the instant complaint was filed. By alleging a pattern
of harassment, complainant has stated a cognizable claim under the
EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303
(November 12, 1993).
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
September 9, 2003
__________________
Date