01A10075_r
08-01-2002
Donald R. Mastin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donald R. Mastin v. U.S. Postal Service
01A10075
August 1, 2002
.
Donald R. Mastin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10075
Agency No. 1-H-1761-93
Hearing No. 150-99-8579X
DECISION
Complainant filed a timely appeal with this Commission from a final
agency action dated September 6, 2000, which dismissed his complaint
of unlawful employment discrimination brought pursuant to Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.,
and the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791, et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
In his June 10, 1993 complaint, complainant claimed discrimination on
the bases of disability and in reprisal for prior protected activity
concerning:
the agency's failure to provide him with a copy of a CA-1 form that he
previously submitted; and
the agency's denial of his request for administrative leave to commence
on May 27, 1993.
The agency accepted and investigated the complaint. After receiving a
copy of the report of investigation, complainant requested a hearing
before an EEOC Administrative Judge (AJ). The agency forwarded the
hearing request to the EEOC's Miami District Office.
The record reflects that the AJ issued an Acknowledgment Order and an
Order to Attend Mediation on August 29, 1999. In response, complainant's
treating physician, a psychiatrist, submitted a letter to the AJ, which
stated that complainant was �not capable of participating meaningfully
in a mediation hearing.� In order to clarify this statement, the AJ
telephonically contacted complainant, leaving a message. In reply,
complainant's mother left a message informing the AJ that she was
complainant's �mediator.� The AJ then spoke to complainant's mother and
informed her that it was necessary to know whether complainant was able to
pursue his EEO complaint. Complainant's mother indicated that she would
provide this information to the AJ within one week. The next day, the
AJ received a hand-delivered letter signed by complainant. The letter
indicated that complainant received the AJ's Order as of September 8,
1999, and that the purpose of the letter was to apprise the AJ of receipt.
The letter then addressed certain issues in the complaint.
Following this response and two subsequent letters sent to him by
the complainant, which primarily address issues in the complaint,
the AJ left several telephone messages for complainant. However,
because neither complainant nor his mother purportedly responded to
these messages, the AJ issued a letter dated October 13, 1999, notifying
complainant to contact him and to respond to the question of his ability
to proceed to a hearing. This letter additionally notified complainant
that his failure to reply in writing by November 5, 1999, would result
in the complaint being dismissed for failure to prosecute. The record
indicates that complainant did not directly respond to this letter, but
that the AJ received a copy of a letter addressed to the agency, signed
by complainant, which reflected the name of complainant's representative
and addressed certain matters raised in a current settlement attempt of
the instant complaint.<1>
On January 7, 2000, the AJ scheduled a telephonic pre-hearing conference
for March 3, 2000. In response, complainant requested a later time so
that his brother could act as his representative. The conference was
conducted, but the AJ was not satisfied with the responses he received
from the parties as to complainant's ability to proceed to a hearing.
The AJ then unilaterally obtained a written opinion from complainant's
treating physician, which is not of record before the Commission
on appeal. Based on this opinion, purportedly dated March 10, 2000,
the AJ determined that complainant could only proceed to a hearing if he
obtained a legal guardian. Therefore, by Order dated May 16, 2000, the AJ
ordered complainant to take the necessary steps to have a legal guardian
appointed, giving him until June 20, 2000 to initiate these steps.
On behalf of complainant, his brother responded to the above order
by letter dated June 27, 2000. Therein, he requested that the case be
postponed until complainant was able to pursue it, or until certain named
agency officials could be added to the witness list for the purpose of
challenging their affidavit testimony.
The AJ found that the above letter was unresponsive, and must be construed
as a request for an indefinite abeyance of the hearing. Therefore,
on August 25, 2000 the AJ issued a �Dismissal Decision,� dismissing the
complaint on the grounds of failure to prosecute, pursuant to both 29
C.F.R. � 1614.107(a)(7) and 29 C.F.R. � 1614.109(f)(3). Specifically,
with reference to the course of events discussed above, the AJ concluded
that dismissal was proper not only upon his finding that complainant
failed to adequately respond to his Orders and requests for information,
but because it was �evident� that complainant was not capable of
proceeding to a hearing, and yet failed to initiate proceedings for the
appointment of a legal guardian as ordered.
The agency's final action implemented the AJ's Dismissal Decision, and
provided complainant with appeal rights to the Commission. The instant
appeal followed.
Under 29 C.F.R. 1614.109(f)(3), an AJ's available sanctions 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 also EEOC Management Directive 110,
Chapter 7, pp. 9-10(1999). However, 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).
In this case, the AJ dismissed the complaint, finding that complainant
did not adequately respond to his frequently issued inquiry regarding
whether complainant could proceed with his complaint by actively
participating in the hearing process. Review of the record discloses
that either complainant himself, or his mother or brother on his behalf,
responded to the AJ's Orders and inquiries regarding this issue.
We find, however, that these responses while reflective of complainant's
desire to proceed, do not make specific reference to the physician
statement opining that complainant could not meaningfully participate
in a hearing. As the AJ noted in his decision, although a request
was made that the case be held in abeyance until complainant can pursue
his claim, there is no guarantee as to when, if ever, that will occur;
and the claim could not be held in abeyance indefinitely.
Upon review, however, we find that complainant's actions do not rise
to the level of contumacious conduct. Accordingly, we find that a
lesser sanction would have been appropriate, and that the AJ improperly
sanctioned complainant by dismissing the complaint. See Clark v. USPS,
EEOC Appeal No. 01945228 (February 22, 1996). Specifically, we find
that the AJ should have canceled the hearing and remanded the complaint
to the agency for a decision on the merits of his claim. Accordingly,
the agency's final action is REVERSED, and this complaint is REMANDED
to the agency for further processing in accordance with the ORDER below.
ORDER
Within sixty (60) calendar days of the date that this decision becomes
final, the agency shall take final action in accordance with 29 C.F.R.
� 1614.110(b). A copy of the final agency decision 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
August 1, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1According to the letter, there was a question as to whether the named
representative would continue to serve in that capacity.