01A14057
02-10-2001
Geoffrey Jones, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Geoffrey Jones v. United States Postal Service
01A14057
February 10, 2001
.
Geoffrey Jones,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 01A14057
Agency No. 1A072004999; 1A072003199; 1A072002698
Hearing No. 170-AO-8628X; 170-AO-8629X; 170-AO-8630X
DECISION
Complainant filed a timely appeal with this Commission from an final
agency action dated May 24, 2001, dismissing his 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of race (Black), religion (Jehovah's Witness), sex (male), national origin
(unspecified), age (DOB: 2/7/1958), disability (asthma), and reprisal
(prior EEO activity) when:
on March 18, 1998, following an arbitrator's award which restored him to
duty from a prior removal action, he was ordered to complete a fitness
for duty examination, conducted by a criminal psychiatrist;
on February 15, 1999, he was placed on Emergency Off; and
on March 12, 1999, he was issued a Notice of Removal, which became
effective on April 16, 1999.
The record indicates that after the agency accepted and investigated
the above-stated complaint,
complainant was provided a copy of the investigative report and requested
a hearing before an EEOC Administrative Judge (AJ). On March 12, 2001,
the AJ ordered complainant to submit to deposition within 20 days of
the date of the order. Complainant refused to submit to a deposition
during the 20 day period.
On May 17, 2001, the AJ dismissed the complaint, for failure to abide
by an Order of an Administrative Judge. Although the AJ did not cite
the regulation he was relying upon for dismissing the complaint, the
Commission finds that the AJ was most likely relying on 29 C.F.R. �
1614.109(f)(3) to sanction complainant. The agency's final action
implemented the AJ's decision.
Upon review of the record, we find that complainant's complaint was
improperly dismissed, and we reverse the agency's final action and remand
the complaint to the agency for a decision on the merits. An AJ has
the authority to sanction a party for failure without good cause shown
to fully comply with an Order. Here, complainant's failure to submit
to deposition and puzzling explanation for not doing so does not rise
to the level of contumacious conduct. Accordingly, we find that the AJ
abused his discretion in issuing so severe a sanction as dismissal when a
lesser sanction would have been appropriate. Specifically, we find that
the AJ should have considered complainant's conduct as constituting a
withdrawal of his request for a hearing and the AJ should have remanded
the complaint to the agency. See Reed v. United States Postal Serv.,
EEOC Appeal No. 01A05039 (Jan. 3, 2001). Thereafter, the appropriate
action for the agency to have taken should have been to issue a decision
on the merits of the complaint (without a hearing). Id.
Accordingly, the agency's final action is REVERSED and this complaint
is REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER
Within sixty (60) calendar days from the date this decision becomes
final, the agency shall take final action in accordance with 29 C.F.R. �
1614.110. A copy of the agency's final decision must be sent to the
Compliance Officer referenced herein.
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
February 10, 2001
__________________
Date