01975064
09-14-1999
Lisa Suppers, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny/Mid-Atlantic Region), Agency.
Lisa Suppers, )
Appellant, )
)
)
v. ) Appeal No. 01975064
) Agency No. 4C150103595
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Allegheny/Mid-Atlantic Region), )
Agency. )
_________________________________)
DECISION
Lisa Suppers (hereinafter appellant) filed an appeal with this Commission
from a final decision of the agency concerning her 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. and Section 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
The final agency decision was issued on May 12, 1997, and received by
appellant's attorney on May 17, 1997. The appeal was postmarked June
12, 1997. Therefore the appeal is timely (see 29 C.F.R. � 1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds of her failure to comply and/or cooperate
pursuant to the provisions of EEOC Regulation 29 C.F.R. � 1614.107((g).
BACKGROUND
The record indicates that on December 27, 1994, appellant initiated
contact with an EEO Counselor regarding her complaint of unlawful
employment discrimination. Informal efforts to resolve her concerns
were unsuccessful and on February 28, 1995, she filed a formal complaint.
Therein, she alleged discriminatory treatment and harassment on the basis
of sex (female) and physical disability (left eye vision and weight) when:
(1) she was forced to resign on November 21, 1994, due to management's
course of conduct designed to eliminate her from her job<1>; and
(2) she was denied reinstatement on December 6, 1994.
Appellant's complaint was accepted for investigation on March 28, 1995.
Upon completion of the investigation, appellant was sent a copy of the
investigative file, which she received on February 9, 1996. On March
5, 1996, appellant requested a hearing before an EEOC Administrative
Judge. The agency submitted the case to the Philadelphia EEOC District
Office and it was assigned to an Administrative Judge (hereinafter AJ).
By Scheduling Order, dated February 13, 1997, the AJ notified the parties
of a prehearing conference scheduled for April 2, 1997, and of a hearing
scheduled for April 30, 1997. This Order also notified appellant and
her representative that failure to submit a witness list within fifteen
(15) calendar days of receipt of the Order, without notice to the AJ
within the same time period that no witnesses would be requested, but that
appellant nonetheless wished to proceed with the hearing, would result in
a conclusion that appellant failed to comply/cooperate with the Order.
Appellant and her representative were also told that such failure would
result in the case being remanded to the agency.<2>
On March 24, 1997, having not received a witness list or a statement
indicating that appellant did not wish to call any witnesses, the AJ
sent a letter to the parties indicating that the appellant had failed
to comply with the Scheduling Order and that the matter was therefore
remanded to the agency. The agency was instructed to issue a final
decision on the record and notify appellant of her right to appeal.
On May 12, 1997, the agency issued a final decision. Therein, it
referenced the AJ's decision to remand the matter for failure to
comply and/or cooperate and dismissed the complaint under 29 C.F.R. �
1614.107(g). It is this final decision that appellant now appeals.
CONTENTIONS ON APPEAL
On appeal, appellant's attorney argues that the untimely submission of
the witness list was his mistake and should not be used to deny appellant
her right to due process, which includes a full hearing on the merits.
He also notes that remanding the case for a hearing would not prejudice
the Agency.
The agency, on appeal, argues that appellant's attorney admitted his
failure to submit the witness list in a timely matter and that, as an
attorney, he should be held to a higher standard than non-attorney
representatives. Thus, the agency argues, appellant's attorney has
failed to provide sufficient reason for the untimely submission and
appellant's appeal should be denied.
ANALYSIS AND FINDINGS
The Commission has previously recognized that, pursuant to 29 C.F.R. �
1614.109((d)(3)(v), an AJ has the authority to cancel a hearing and
remand a case for a final agency decision where the complainant fails
to respond to the AJ's request for information. See Sapp v. Department
of Education, EEOC Appeal No. 01945362 (February 6, 1996); Schneider
v. Department of Treasury, EEOC Appeal No. 01933192 (December 16, 1993),
req. to reopen den., EEOC Request No. 0594298 (December 9, 1994). Here,
it is undisputed that the February 13, 1997 Scheduling Order included a
request for appellant's witness list or a notice that no witnesses would
be called and indicated that failure to provide this information within
fifteen (15) days of receipt of the Order would result in a remand to
the agency. While the record does not include a certified mail receipt
or any other evidence to indicate when appellant's attorney received the
Scheduling Order, he concedes that the witness list he sent on March 25,
1997 (forty days after the Order was issued) was late.
EEOC Regulations provide AJ's with broad discretion in the conduct of a
hearing, including such matters as discovery orders and the drawing of
adverse inferences and other sanctions. See, e.g., Ortega v. United
States Postal Service, EEOC Appeal No. 01956818 (February 5, 1998);
Malley v. Department of the Navy, EEOC Appeal No. 01951503 (May 22,
1997). Therefore, the AJ was within her rights to remand the case to
the agency.<3>
Upon receiving the remanded complaint, the agency invoked EEOC Regulation
29 C.F.R. � 1614.107(g), to dismiss it. This regulation requires
an agency to dismiss a complaint where the agency has provided the
complainant with a written request to provide relevant information or
otherwise proceed with the complaint, and the complainant has filed to
respond to the request within fifteen (15) days of its receipt or the
complainant's response does not address the agency's request, provided
that the request included a notice of the proposed dismissal. However,
the regulation also provides that instead of dismissing for failure
to prosecute, the agency may adjudicate the complaint if the record
contains sufficient information to do so. See Roseman v. Department of
the Treasury, EEOC Request No. 05950714 (January 6, 1997). Moreover,
the Commission has held that ordinarily, a finding that an appellant
has failed to prosecute her complaint at the hearing stage, does not
justify cancellation of a complaint by an agency if there is sufficient
information available upon which to base an adjudication. Schneider
v. Department of the Treasury, EEOC Request No. 05940298 (December
9, 1994). The Commission has also held that 29 C.F.R. � 1614.107(g)
is applicable only in cases where there is a clear record of delay or
contumacious conduct by the complainant. See Magdalene Anderson v. United
States Postal Service, EEOC Request No. 05940850 (February 24, 1995).
After a careful review of the record, we find that the agency did not
establish that appellant engaged in delay or contumacious conduct or that
the record is insufficient to permit adjudication, even though we find
that appellant's attorney failed to timely respond to the AJ's Order
to provide a witness list. See Roseman v. Department of the Treasury,
EEOC Request No. 05950714 (January 6, 1997); Anderson v. United States
Postal Service, EEOC Appeal No. 01975483 (September 8, 1998). While this
delay was sufficient reason for the AJ to remand the matter to the agency
for a final decision on the record, it does not suffice to support a
dismissal of appellant's complaint. The record contains appellant's
complaint and counseling report, as well as an investigative file which
includes appellant's affidavit, the affidavits' of those management
officials whom appellant alleged discriminated against her, and numerous
exhibits pertaining to the allegations at issue. The agency therefore
has sufficient information to issue a final decision on the merits.
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaint
for failure to cooperate was improper and is VACATED and REMANDED in
accordance with the ORDER below and applicable regulations.
ORDER
The agency is ORDERED to issue a final decision on the merits of
the complaint. The agency shall acknowledge to appellant that it has
received the remanded complaint within thirty (30) calendar days of
the date this decision becomes final. The agency shall issue a final
decision on the merits within sixty (60) calendar days of the date this
decision becomes final.
A copy of the agency's letter of acknowledgment to appellant and a copy of
the final decision on the merits must be sent to the Compliance Officer
as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant.
If the agency does not comply with the Commission's order, the appellant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The appellant 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. �� 1614.408,
1614.409, and 1614.503(g). Alternatively, the appellant 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. ��
1614.408 and 1614.409. 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 appellant files a civil
action, the administrative processing of the complaint, including any
petition for enforcement, will be terminated. See 29 C.F.R. � 1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (R0993)
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. It is the position of the Commission that 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. You should be aware, however, that courts in some
jurisdictions have interpreted the Civil Rights Act of 1991 in a manner
suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive this decision. To ensure that your
civil action is considered timely, you are advised to file it WITHIN
THIRTY (30) CALENDAR DAYS from the date that you receive this decision
or to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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 (Z1092)
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:
Sept. 14, 1999
DATE
Carlton
M.
Hadden,
Acting
Director
Office
of
Federal
Operations
FOR OFO INTERNAL CIRCULATION ONLY
FOR PROCEDURAL CASES
TO: CARLTON M. HADDEN, ACTING DIRECTOR
OFFICE OF FEDERAL OPERATIONS
APPEAL NUMBER:
01975064
AGENCY NUMBER:
4C150103595
(APPROVED) (DATE)
REQUEST NUMBER:
HEARING NUMBER:
THE ATTACHED DECISION IS RECOMMENDED FOR APPROVAL:
TITLE
NAMES
INITIAL
DATE REVIEWED
(ATTORNEY):
Kerry E. Leibig
July 14, 1999
(SUPERVISOR:
Marjorie Borders
(DIVISION DIRECTOR):
1.) (APPELLANT(S)
Lisa Suppers
2.) (AGENCY)
United States Postal Service
3.) (DECISION)
Remanded (for decision on the merits)
4.) (STATUTE(S)
Title VII, Rehabilitation Act
5.) (BASIS(ES)
HP, Gf
6.) (ISSUE(S)
D2, H1, H2
7.) (TYPIST/DATE/DISK)
KL0/ July 14, 1999
SPELL CHECK:
YES
(PLEASE CHECK ALL APPLICABLE CODES)
PROCEDURAL CODES
LETTER CLOSURE CODES
X 3K - PROCEDURAL DECISION
? 3N - APPEAL DENIED/DISMISSED
? 3P - ADVERSE INFERENCE RAISED
? 4H - OFO AFFIRMED FAD
X 3M - OFO REVERSED AND REMANDED
? 4J - OFO MODIFIED FAD
X 4Q - COMPLIANCE
REQUIRED
? 3B - FAD RESCINDED
? 3C - DUPLICATE DOCKET NUMBER
? 3D - WITHDRAWAL
? 3E - COMPLAINT SETTLED
? 3G - OTHER LETTER CLOSURE
[REVISED AS OF 4/21/98]
1 The final agency decision defines Allegation No. 1 as �complainant
was terminated�, but a fair reading of appellant's complaint is that
she was forced to resign due to management's harassment.
2 The February 13, 1997 Scheduling Order is not present in the record.
However, the AJ's letter remanding the matter to the agency recites the
contents of the Order and neither party disputes that recital.
3 EEOC Regulation 29 C.F.R. � 1614.605(e) provides that a complainant
shall at all times be responsible for proceeding with the complaint
whether or not she has designated a representative. The argument of
appellant's attorney that it was his error that resulted in the untimely
submission of the witness list thus carries no weight.