Billy Colon v. United States Postal Service
01997035
11-21-00
.
Billy Colon,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01997035
Agency No. 4J606004698
DECISION
INTRODUCTION
Complainant timely filed an appeal with this Commission from the final
agency decision. This case pertains to 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. Upon review, the
Commission finds that the agency properly dismissed complainant's formal
EEO complaint pursuant to 29 C.F.R. � 1614.107(a)(7).<1>
ISSUE PRESENTED
The issue presented herein is whether the agency properly dismissed
complainant's formal EEO complaint for failure to cooperate.
BACKGROUND
On March 10, 1998, complainant filed a formal EEO complaint alleging that
he was discriminated against based on his race (Hispanic) when he received
notice of termination for failure to deliver mail. In a letter dated
October 21, 1998, the agency requested that the complainant complete
an affidavit regarding his allegation of discrimination. The agency
made a second request for an affidavit on April 21, 1999; however, due
to complainant's change of address, the letter was not received by the
complainant, but rather by his representative. Finally, in a letter
dated July 8, 1999, the agency requested an affidavit and informed the
complainant that failure to respond within 15 days could result in a
dismissal of his complaint. The complainant received this final letter
on July 13, 1999 and contacted the agency on July 29, 1999 requesting a
one week extension to submit his affidavit. When the complainant failed
to provide an affidavit in a timely manner, the final agency decision
dated August 11, 1999 was rendered, dismissing the complaint pursuant
to 29 C.F.R. � 1614.107(a)(7) for failure to cooperate.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) 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.
In the instant complaint, the agency contacted the complainant or his
representative on three separate occasions in letters dated October 21,
1998, April 21, 1999 and July 8, 1999, requesting an affidavit regarding
his allegation of discrimination. The final letter dated July 8, 1999
contained the following specific warning in bold type:
Failure to respond to this notice within fifteen (15) days from the
date of receipt may result to [sic] the dismissal of your complaint for
failure to cooperate.
The record does not show that the complainant or his representative
ever responded to the agency's October 21, 1998 or April 21, 1999
letters requesting further information. As to the agency's final
request for an affidavit dated July 8, 1999, complainant requested a
one-week extension to submit his affidavit, but no evidence exists in
the record to show that complainant ever submitted an affidavit after
his request for the extension. Moreover, complainant makes no arguments
on appeal that he did respond to the agency's request or that he did not
receive the agency's request. We find, therefore, that EEOC Regulation
29 C.F.R. � 1614.107(a)(7) is applicable to the claim at hand because
the complainant was given 15 days to respond to the agency's inquiry
and sufficient notice was given as to the possibility of dismissal of
his complaint. As such, the agency properly dismissed complainant's
claim for failure to cooperate.
CONCLUSION
Accordingly, we AFFIRM the agency's dismissal of the complainant's
complaint of discrimination pursuant to 29 C.F.R. � 1614.107(a)(7).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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. 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. If you
file a request to reconsider and also file a civil action, 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
__11-21-00________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
Comments