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be rescinded.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).