Connie Crayton, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.

Equal Employment Opportunity CommissionMar 24, 2000
01973526 (E.E.O.C. Mar. 24, 2000)

01973526

03-24-2000

Connie Crayton, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Region), Agency.


Connie Crayton v. United States Postal Service

01973526

March 24, 2000

Connie Crayton, )

Complainant, )

) Appeal No. 01973526

v. ) Agency No. 1B-121-1001-95

) Hearing No. 160-95-8692X

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(N.E./N.Y. Metro Region), )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from the agency's final decision

concerning her equal employment opportunity (EEO) 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.<1> The appeal is

accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to be codified at

29 C.F.R. � 1614.405). Complainant alleges she was discriminated against

on the bases of her race and color (Black) when she was not selected for

the position of Supervisor, Distribution Operations (EAS-16). For the

following reasons, the Commission reverses the agency's final decision.

The record reveals that complainant, a Mailhandler at the agency's

Processing and Distribution Center in Syracuse, New York, filed a

formal EEO complaint on November 14, 1994, alleging that the agency had

discriminated against her as referenced above. At the conclusion of

the investigation, complainant was provided a copy of the investigative

report and requested a hearing before an EEOC Administrative Judge (AJ).

In issuing a decision without a hearing, the AJ drew an adverse inference

against the agency for failing to comply with complainant's discovery

request and entered judgment in favor of the complainant.

In his recommended decision, the AJ set forth the chronology of events

which led to the default judgment. In December 1997, complainant

retained different counsel and petitioned the AJ for permission to

serve late discovery since her previous attorney had failed to do

so.<2> When the agency did not respond, the AJ issued an Order dated

February 6, 1996, granting complainant's request but limiting the scope

of discovery to a set of interrogatories which complainant had already

propounded to the agency. On February 8, 1996, the agency responded,

"vehemently" opposing the AJ's decision and requesting that the Order

be rescinded. On February 12, 1996, complainant re-served the agency the

set of interrogatories. On March 1, 1996, the AJ reaffirmed his Order

and granted the agency thirty days to respond to the interrogatories.

On April 15, 1996, complainant informed the AJ that the agency had yet

to respond. When the agency did not respond to complainant's charge, the

AJ issued an Order dated May 6, 1996, imposing a sanction which provided

for the exclusion of evidence provided by the agency. On June 24, 1996,

having finally received a response to the interrogatories from the agency

but finding it wholly inadequate, complainant moved for a decision in

her favor. Again the agency did not respond.

Upon review, the AJ determined that further sanctioning of the agency

was appropriate. The AJ specifically noted that the agency had not only

failed to respond to complainant but had also failed to respond to his

May 6, 1996 Order. The AJ further noted even after he had purposefully

limited the scope of discovery to one set of interrogatories (based on his

review of what he considered to be the burdensome nature of complainant's

discovery requests), the agency failed to proffer any cogent argument

in support of its objection to either the granting of discovery or

the interrogatories themselves. Furthermore, the agency neglected to

respond to complainant's request for a default judgment in her favor.

The AJ concluded that the agency's conduct was an intentional "direct

flouting" of the Commission's authority. Accordingly, the AJ issued a

recommended decision finding discrimination which the agency rejected

in its final decision. It is from the agency's final decision that

complainant now appeals.

On appeal, complainant contends that the AJ was well within his discretion

in sanctioning the agency for the reasons set forth in his recommended

decision and requests that the Commission reverse the agency's final

decision and adopt the AJ's finding of discrimination. In response,

the agency argues, without explanation, that the AJ erred in permitting

late discovery and that information sought by complainant, specifically

statistical evidence, lacked relevance, thereby precluding the drawing

of an adverse inference.

After a careful review of the record in its entirety, the Commission

finds that the AJ's recommended decision sets forth the relevant facts

and properly analyzes the appropriate regulations, policies and laws.

EEOC regulations provide administrative judges with the power to authorize

discovery and limit both its scope and time-frame. Despite the agency's

arguments to the contrary, the Commission is not persuaded that the AJ

abused his discretion in permitting discovery to recommence and imposing

sanctions when the agency willfully refused to comply with the AJ's

orders. 29 C.F.R. � 1614.109(d); 64 Fed. Reg. 37,644, 37,657 (1999)(to be

codified at and hereinafter referred to as 29 C.F.R. � 1614.109(f)(3)).

The Commission concurs with the AJ's conclusion that the agency failed

to proffer adequate justification for its actions in this matter.

The regulations further provide that when an agency fails, without

good cause shown, to respond fully and in a timely fashion to discovery

requests for documents, records, comparative data, statistics, affidavits

or the attendance of witnesses, the AJ, in appropriate circumstances,

may issue a decision fully or partially in the complainant's favor.

29 C.F.R. � 1614.109(f)(3)(iv).<3> We find that the AJ in this case was

well within his authority when he sanctioned the agency for "directly

flouting" the Commission's authority, resulting in significant prejudice

to complainant's prosecution of her complaint. Pacheco v. United States

Postal Service, EEOC Appeal No. 01970691 (November 25, 1998). Based on

the evidence of record, the Commission discerns no basis to disturb the

AJ's finding of discrimination.

Accordingly, it is the decision of Commission to REVERSE the agency's

final decision. In order to remedy complainant for its discriminatory

actions, the agency shall comply with the following order.

ORDER

The agency is ORDERED to take the following remedial action:

1. The agency shall retroactively promote complainant to an EAS-16

Supervisory Distribution Operations position, effective September

16, 1994, with full back pay and all other benefits due complainant,

pursuant to 29 C.F.R. � 1614.501(c), no later than sixty (60) calendar

days after the date this decision becomes final. Complainant shall

cooperate in the agency's efforts to compute the amount of back pay and

benefits due and shall provide all relevant information requested by

the agency. If there is a dispute regarding the exact amount of back

pay and/or benefits, the agency shall issue a check to complainant for

the undisputed amount within sixty (60) calendar days of the date the

agency determines the amount it believes to be due. Complainant may

petition for enforcement or clarification of the amount in dispute.

The petition for clarification or enforcement must be filed with the

Compliance Officer at the address set forth below.

2. The agency shall conduct training for its supervisory personnel at

the Processing and Distribution Center in Syracuse, New York regarding

their obligations under the anti-discrimination statutes enforced by

the Commission.

3. The agency shall post copies of the attached notice at the Processing

and Distribution Center in Syracuse, New York . Copies of the notice,

after being signed by the agency's duly authorized representative,

shall be posted by the agency within thirty (30) calendar days of the

date this decision becomes final and shall remain posted for sixty (60)

consecutive days, in conspicuous places, including all places where

notices to employees are customarily posted. The agency shall take

reasonable steps to ensure that said notices are not altered, defaced,

or covered by any other material. The original signed notice is to

be submitted to the Compliance Officer at the address set forth below

within ten (10) calendar days of the expiration of the posting period.

4. The issues of compensatory damages and attorney's fees and costs

are REMANDED to the Hearings Unit of the New York District office.

Thereafter, the Administrative Judge shall issue a decision on these

issues in accordance with 64 Fed. Reg. 37,644, 37,657 (1999) (to be

codified at 29 C.F.R. � 1614.109), and the agency shall issue a final

action in accordance with 64 Fed. Reg. 37,644, 37,657-58 (1999) (to be

codified at 29 C.F.R. � 1614.110) within forty (40) days of receipt of

the Administrative Judge's decision. The agency shall submit copies

of the Administrative Judge's decision and the final agency action to

the Compliance Officer at the address set forth below.

5. The agency is further directed to submit a report of compliance, as

provided in the statement entitled "Implementation of the Commission's

Decision." The report shall include supporting documentation of the

agency's calculation of backpay and other benefits due complainant and

evidence that all other corrective action has been implemented.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K1199)

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 64

Fed. Reg. 37,644, 37,659-60 (1999) (to be codified and hereinafter

referred to as 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 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified and hereinafter referred to as 29 C.F.R. � 1614.409).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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 (R1199)

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:

3/24/00

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On 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 64 Fed. Reg. 37,644 (1999), where

applicable, in deciding the present appeal. The regulations, as

amended, may also be found at the Commission's website at www.eeoc.gov.

2 The AJ had issued an Order dated September 18, 1995 requiring that

discovery be commenced within ten days and completed within forty-five

days.

3 We remind the agency that while statistical evidence alone is not

sufficient to prove pretext in individual complaints of disparate

treatment, it can be relevant and probative when combined with other

evidence. Stevens v. Equal Employment Opportunity Commission, EEOC

Appeal No. 01970848 (August 14, 1997). Moreover, in the instant case,

the AJ acted within his discretion when he specifically limited the

scope of discovery to what he deemed relevant. 29 C.F.R. � 1614.109(d).