01a42550
07-26-2004
Bernadine Sims, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Bernadine Sims v. United States Postal Service
01A42550
July 26, 2004
.
Bernadine Sims,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42550
Agency No. 1-J-601-0048-02
Hearing No. 210-2003-06393X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
order dated January 9, 2004, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal.
See 29 C.F.R. � 1614.405.<1>
In her complaint, complainant claims discrimination on the bases of race
(African-American) and disability (carpal tunnel) when, on April 18,
2002, the acting manager of "Transportation," reassigned her, without
the benefit of proper paperwork, and made sarcastic remarks to her.
The agency accepted the complaint for investigation, and complainant
requested a hearing before an EEOC Administrative Judge (AJ).
On October 9, 2003, the AJ issued an Acknowledgment and Scheduling Order
to the parties, wherein they were informed that failure to comply with
the AJ's orders, without good cause, could result in sanctions, including
dismissal, pursuant to 29 C.F.R. � 1614.109(f)(3). In her January 5, 2004
Order dismissing the complaint, the AJ determined that despite receiving
proper notice, complainant failed to submit pre-hearing submissions by
November 18, 2003. Additionally, the AJ noted that she issued a Show
Cause Order to complainant on December 15, 2003, to explain her failure
to file pre-hearing submissions, with a warning that failure to respond
could result in dismissal. Finally, the AJ determined that complainant
failed to respond to the Show Cause Order, and dismissed the complaint
for failure to prosecute.
In its final order, the agency adopted the AJ's dismissal of the captioned
complaint on the grounds of failure to cooperate.
On appeal, in pertinent part, complainant argues that while she received
all notices and orders from the AJ, as did her representative, she
mistakenly believed that her representative made the necessary responses,
and avers that she should not be penalized for his incompetence.
An AJ has the authority to sanction either party for failure without good
cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3).
The sanctions available to an AJ for failure to provide requested relevant
information 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. See Hale v. Department
of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). 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). EEOC
Regulation 29 C.F.R. � 1614.107(a)(7), provides for the dismissal of a
complaint only if 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. 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) .
In this case, we find that while the alleged failure of complainant's
representative cannot excuse complainant's failure to respond to the AJ's
orders, given that she had proper notice of all Orders throughout the
pre-hearing proceedings, we find that her conduct in this matter must be
viewed as "simple negligence," rather than a deliberate attempt to thwart
the EEO process. Therefore, we find that dismissal of the complaint was
too harsh a sanction in this case. Moreover, we find that the agency
completed an investigation of the complaint, and that the evidentiary
record in this case is sufficiently developed to render an adjudication
on the merits of the claim. Accordingly, we find that the AJ should
have cancelled the hearing, and remanded the case to the agency to render
a decision on the merits of the complaint.
In conclusion, for the reasons set forth above, we find that the captioned
complaint was improperly dismissed. We REMAND the case to the agency
to issue a final action on the merits of the complaint.
ORDER
Within thirty (30) calendar days of the date of this decision, the agency
must issue a final action on the merits of the captioned complaint,
as set forth in 29 C.F.R. � 1614.110.
A copy of all pertinent documentation confirming compliance with the
above order 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
July 26, 2004
__________________
Date
1On appeal, the agency argues that complaint
received its final decision on February 2, 2004, and filed the instant
appeal on March 8, 2004, which is beyond the 30-day time limit.
However, the appeal was received on March 8, 2004, in an envelope with
no postmark. A document will be deemed timely if, in the absence of a
legible postmark, it is received within five days of the expiration of
the applicable filing period. Therefore, as the appeal was received
within five days of the expiration of the applicable filing period,
it is considered timely.