01a51929
06-14-2005
Corazon H. Zambrano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Corazon H. Zambrano v. United States Postal Service
01A51929
June 14, 2005
.
Corazon H. Zambrano,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 01A51929
Agency No. 1F-941-0005-04
Hearing No. 370-2005-00006X
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning 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 the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final decision.
The record reveals that complainant, a former Casual Clerk at the
agency's North Peninsula Delivery and Distribution Center, in Burlingame,
California, sought EEO counseling and subsequently filed a formal
complaint on February 7, 2004, alleging that she was discriminated against
on the bases of national origin (Phillipines) and age (D.O.B. 10/10/50)
when, on October 6, 2003, the agency issued her a termination letter.
At the conclusion of the investigation, complainant was informed of
her right to request a hearing before an EEOC Administrative Judge or
alternatively, to receive a final decision by the agency. Complainant
requested a hearing. By Notice dated October 13, 2004, the AJ informed
the parties
that he was considering resolving the case without a hearing pursuant
to 29 C.F.R. � 1614.109(g). The AJ provided a lengthy discussion of
the issues that complainant needed to address in her response to the
Notice and instructed her to provide any additional evidence bearing
on the question of whether a reasonable fact finder could conclude
that discrimination occurred in this case. The AJ further stated that
complainant had until October 29, 2004 to respond in writing to the
Notice and Order. Complainant was informed that if she did not submit a
timely written response, the AJ would construe her failure to respond as
a withdrawal of her request for a hearing and, without further notice,
return the complaint file to the agency for issuance of a final agency
decision on the record. As complainant did not file a written response
to the Notice and Order, the AJ construed complainant's failure to
respond as a withdrawal of her request for a hearing, and returned the
complaint file to the agency for issuance of a final agency decision on
the record. The agency subsequently issued a final decision finding no
discrimination.
The Commission's position concerning sanctions was specifically set out
in Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8,
2000):
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);
EEOC Management Directive 110, Chapter 7, pp. 9-10 (Nov. 9,1999).
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.
However, such 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)(citing McKelvey v. AT & T Technologies, Inc., 789 F.2d
1518 (11th Cir. 1986)).
Hale, at 2. An AJ must distinguish between conduct that does not warrant
the imposition of a sanction and conduct that does. In this case,
complainant failed to respond to a notice of an AJ's intent to issue a
decision without a hearing, and the AJ canceled the hearing. The AJ's
denial of complainant's hearing request under these circumstances was
in error.
Nevertheless, a careful review of the record indicates that complainant
has failed to present evidence that any similarly situated individual,
outside of complainant's protected classes, was treated more favorably
under similar circumstances. Additionally, on appeal, complainant failed
to submit any evidence that convinces this Commission that a reasonable
fact finder could conclude that the reason complainant was terminated
was because of her age or national origin. Accordingly, we decline to
remand this complaint for any further proceedings, and we AFFIRM the FAD.
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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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, 2005
__________________
Date