U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Genie S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120151440 Agency No. 4G-700-0063-12 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated February 20, 2015, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. We accept the appeal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Roy Rondeno Post Office facility in New Orleans, Louisiana. On May 30, 2012, Complainant filed a formal complaint alleging that the agency subjected her to discrimination on the bases of disability (right wrist), age (60), and reprisal for prior protected EEO activity when, on February 3, 2012 and continuing, her supervisor subjected her to a hostile work environment. According to Complainant, the alleged harassment included her supervisor telling Complainant that "you need to go out and retire," and the imposition of a 14-day suspension and reduction of her work hours after she filed this complaint. Further, Complainant alleged that her "supervisor ...continues to exhibit a pattern of hostile behavior towards [her]. The EEO Dispute Resolution Specialist's Inquiry Report documents that Complainant alleged that "the duties previously performed were taken from her" and her work hours were reduced. The suspension and work hour reduction claims were included in another complaint, referenced as the Agency complaint 4G-700-0106-12 and those claims were addressed in our decision in Complainant v. United States Post Service (Southwest Region), EEOC Appeal 0120130821 (May 8, 2013). On December 3, 2014, the Agency accepted the complaint for investigation, but for a single claim (that her work hours were reduced from eight hours to four hours daily). The Agency commenced an investigation on the complaint and, on December 22, 2014, sent Complainant a request for an affidavit along with instructions and forms for completing the affidavit. In its February 20, 2015 final decision, the Agency dismissed the complaint pursuant to 29 C.F.R. § 1614.107(a)(7) for failure to cooperate, arguing that Complainant failed to return the requested affidavit despite a written warning in the affidavit packet sent to her that failure to provide the affidavit could result in the dismissal of her complaint. EEOC Regulation 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 fifteen 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. Generally, the Commission has held that an agency should not dismiss a complaint when it has sufficient information upon which to base 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 as 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 (Dec. 22, 1994). In the instant case, we find that Complainant has explained why she did not respond to the request for an affidavit. She states that she did not receive the request and has no knowledge of any package being sent to her. Further, there is insufficient evidence to support a conclusion that she purposely engaged in delay or contumacious conduct. Instead, we find that there was sufficient information in the record to have permitted the Agency to have continued the investigation (by collecting evidence from management witnesses) without Complainant's affidavit to permit adjudication on the merits of the hostile work environment claim. A review of the record indicates that Complainant spoke with the Agency's dispute resolution specialist assigned to her case and provided extensive information as detailed in the Dispute Resolution Specialist's Inquiry report (EEO counselor's report). The information provided on Complainant's claims was sufficient to identify the specific management actions she is concerned with, the relevant timeframes and the responsible management officials. This is sufficient information to permit management witnesses to respond to Complainant's allegations. See Hearl v. United States Postal Service, EEOC Appeal No. 0120082505 (July 28, 2008). Whether or not these statements by Complainant provide sufficient evidence to support her claim of discrimination can be addressed in an adjudication of the merits of her complaint for the issues which were dismissed. Accordingly, we conclude that the Agency should have completed its investigation of the complaint without Complainant's affidavit and allowed for an adjudication on the merits of her claims, including hostile environment claim, rather than dismissing the complaint, 4G-700-0063-12. The complaint is hereby remanded to the agency for further processing in accordance with this decision and the Order below. ORDER (E0610) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The claims include the hostile environment claim, the fourteen day suspension as part of the hostile environment claim, the reprisal claim and her claim that she was subjected to less favorable treatment because of her age, disability and/ due to her prior protected activity. 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 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 (K0610) 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 77960, Washington, DC 20013. 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, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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, 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 (M0416) 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 tends 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), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (R0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations September 22, 2016 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120151440 2 0120151440