Ana Po, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 14, 2001
01a10836 (E.E.O.C. Jun. 14, 2001)

01a10836

06-14-2001

Ana Po, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Ana Po v. United States Postal Service

01A10836

June 14, 2001

.

Ana Po,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A10836

Agency No. 1F-941-1145-94

Hearing No. 370-99-2544X

DECISION

INTRODUCTION

Complainant filed a timely appeal with this Commission from the agency's

final action dismissing her formal 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. and Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

For the reasons that follow, the final agency action is VACATED.

ISSUE PRESENTED

The issue presented in this appeal is whether the formal complaint was

properly dismissed when the complainant failed to comply with an order

of the Administrative Judge (AJ) directing her to provide a witness list.

BACKGROUND

Complainant, employed by the agency as a Mail Handler at the time of the

alleged discriminatory events, filed a formal complaint dated October

1, 1994, in which she alleged that she was discriminated against on

the bases of race (Mexican-American), color (brown), national origin

(Hispanic/Latin), sex (female), and disability (unspecified) when,

on September 18, 1993, her supervisor demanded that she move to an

extremely noisy area, ignoring her plea that she was very sensitive to

noise and had a doctor's note to that effect. Complainant also alleged

other incidents of harassing behavior, but did not provide any specific

information regarding these incidents.

The agency accepted the complaint for investigation. During the

investigation, complainant submitted an affidavit elaborating on her

allegations of harassment. Specifically, complainant's affidavit stated

that management refused to acknowledge her work-related health problems

and to provide her with reasonable accommodations; that her medical

condition has been exacerbated by the alleged harassment and retaliation;

that after her doctor allowed her to return to work on September 18,

1993 on limited duty, the incident alleged in the complaint occurred

and that the supervisor ordered her to work in an area in disregard

of her doctor's letter requiring her to do light/limited duty work

because of her physical and mental limitation; that the harassment and

yelling continued the following day when she returned to work; that her

pleas for help were disregarded by agency officials; and that she has

not been able to return to work since the incident in September 1993.

At the conclusion of the investigation, complainant was informed of

her rights to elect a hearing before an EEOC AJ or an immediate final

decision from the agency. Complainant elected the former.

The AJ remanded the complaint to the agency upon concluding that the

investigation was limited to the incident that occurred on September 18,

1993, whereas the complainant's affidavit suggested that there were

additional allegations including a continuing pattern of harassment

and a denial of reasonable accommodation. The AJ ordered the agency to

determine whether those additional allegations were viable, and if so,

to investigate them and give complainant another opportunity to request

a hearing. The AJ's order also provided that if the agency determined

that those allegations were not viable, the agency should dismiss the

complaint because the September 18, 1993 incident alone may not rise

to the level of an unlawful employment practice. The agency determined

that the additional allegations were not viable, and therefore dismissed

the complaint.

Complainant appealed the agency's dismissal to this Commission.

On appeal, we ruled that the incident of September 18, 1993 did rise

to the level of an unlawful employment practice because that incident

constituted an allegation of harassment and a denial of reasonable

accommodation which resulted in complainant's constructive discharge.

Po v. United States Postal Service, EEOC Appeal No. 01963550 (December

30, 1996). We also ruled that the agency failed to give complainant an

opportunity to provide specific information regarding the additional

allegations (incidents not occurring on September 18, 1993). Id.

Based on our rulings, we remanded the case back to the agency. In our

remand, we made clear that complainant was entitled to an investigation

regarding the incidents that occurred on September 18, 1993. We also made

clear that the agency should give complainant an opportunity to provide

specific information regarding the additional allegations (incidents not

occurring on September 18, 1993) before determining whether to accept

or reject these allegations for an investigation. Id.

Pursuant to the order contained in our remand, the agency requested

clarification or additional information in writing from complainant

regarding the additional allegations. Complainant was given fifteen

calendar days to provide this information. When complainant did

not provide the information within the fifteen-day time period, the

agency dismissed the additional allegations pursuant to 29 C.F.R. �

1614.107(g).<1>

After the dismissal of complainant's additional allegations, the

agency forwarded the investigative file to the AJ for disposition of the

remaining portion (i.e., the September 18, 1993 incident) of complainant's

EEO complaint. During the period in which the AJ was preparing the case

for hearing, she requested that complainant provide a witness list within

fifteen days of August 14, 2000. The AJ informed complainant that failure

to comply with her request would lead to dismissal of complainant's case.

When complainant failed to provide the requested information in a timely

manner, the AJ dismissed the case. The agency's final action adopted

the AJ's dismissal. Complainant appealed.

ANALYSIS AND FINDINGS

Administrative judges may dismiss complaints pursuant to 29 C.F.R. �

1614.107, on their own initiative, after notice to the parties, or upon

an agency's motion to dismiss a complaint. 29 C.F.R. � 1614.109(b).

In this case, the AJ dismissed the complaint pursuant to � 1614.107(a)(7)

which states, in pertinent part, that where the agency has provided

the complainant with a written request to provide relevant information,

and the complainant has failed to respond to that request within fifteen

days of its receipt, the agency may dismiss the complaint, provided that

the request included a notice of proposed dismissal (emphasis added).

We note, however, that 29 C.F.R. � 1614.107(a)(7) is only available to

an AJ as a sanction when the complainant fails to comply with an agency

request for relevant information. Hale v. Department of Justice, EEOC

Appeal No. 01A03341 (December 8, 2000). Here, complainant failed to

comply with an AJ's request for relevant information. In such cases,

administrative judges should avail themselves of the sanction provisions

contained within 29 C.F.R. �1614.109(f)(3); EEOC Management Directive

110, Chapter 7, pp. 9-10 (1999). Such sanctions may include an adverse

inference that the requested information would have reflected unfavorably

on the party refusing to provide the requested information, exclusion of

other evidence offered by the party refusing to provide the requested

information, or issuance of a decision fully or partially in favor of

the opposing party. Id. But these sanctions must be tailored in each

case to appropriately address the underlying conduct of the party being

sanctioned. A sanction may be used to both deter the non-complying party

from similar conduct in the future, as well as to equitably remedy the

opposing party. If a lesser sanction would suffice to deter the conduct

and to equitably remedy the opposing party, an AJ may be abusing his or

her discretion to impose a harsher sanction. Dismissal of a complaint

by an AJ as a sanction is only appropriate in extreme circumstances,

where the complainant has engaged in contumacious conduct, not simple

negligence. See Thomas v. Department of Transportation, EEOC Appeal

No. 01870232 (March 4, 1988).<2>

In this case, complainant's case was dismissed because complainant

failed to comply with the AJ's order to provide a witness list. While

complainant's failure to comply was not warranted, we hold that, because

there was no contumacious conduct on the part of complainant, dismissing

the complaint in its entirety was too harsh. That is especially true

in this case because complainants are not required by our regulations

to have witnesses testify on their behalf in administrative hearings.

CONCLUSION

Based on the foregoing, after a careful review of the record, including

complainant's arguments on appeal, the agency's response thereto, and

arguments and evidence not specifically discussed in this decision,

we hereby VACATE the agency's final action adopting the AJ's dismissal,

and REMAND the case to the AJ for a hearing.

ORDER

The agency shall submit to the Hearings Unit of the appropriate EEOC

field office the request for a hearing within fifteen (15) calendar

days of the date this decision becomes final. The agency is directed

to submit a copy of the complaint file to the EEOC Hearings Unit within

fifteen (15) calendar days of the date this decision becomes final.

The agency shall provide written notification to the Compliance Officer

at the address set forth below that the request and complaint file have

been transmitted to the Hearings Unit. Thereafter, the Administrative

Judge shall issue a decision on the complaint in accordance with the

regulation set forth at 29 C.F.R. � 1614.109

and the agency shall issue a final action in accordance with the

regulation set forth at 29 C.F.R. � 1614.110.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)

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)(Supp. V 1993). 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 (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 (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

June 14, 2001

__________________

Date

1There is no evidence in the record indicating that complainant appealed

the agency's dismissal to this Commission. There are, however, documents

indicating that complainant objected to the dismissal by contacting the

agency in writing. Because complainant did not take advantage of the

proper channel of challenging an agency decision, the agency's dismissal

regarding her additional allegations will not be addressed herein.

We note that the agency's dismissal informed complainant of the proper

channel by which to challenge an agency decision.

2Even in cases where circumstances are such that an AJ can avail himself

or herself of 29 C.F.R. � 1614.107(a)(7) (i.e., complainant failed to

comply with an agency request for relevant information), we note that

dismissal is not appropriate when sufficient information is available

to allow the complaint to be adjudicated.