0120091917
06-14-2010
Louise Price, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Reference #: 0120091917
Louise Price
128 E Broadway #3914
New York, NY 10002
Reference #: 0120091917
U.S. Postal Service (N.Y. Metro)
NEEOISO - Appeals
U.S. Postal Service
PO Box 21979
Tampa, FL 33622-1979
Louise Price,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120091917
Hearing No. 520-2008-00226X
Agency No. 4A-100-0173-07
DECISION
Complainant filed a timely appeal with this Commission from the agency's decision dated February 11, 2009, concerning her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.1
Complainant sought EEO counseling on September 11, 2007. The EEO Counselor made four attempts to contact complainant for an interview, but complainant refused to respond. On October 19, 2007, complainant filed a formal EEO complaint alleging that she was harassed on the basis of disability and discriminated against on the same basis when management wrote to the Office of Workers' Compensation Programs, effectively forcing complainant to withdraw her Form CA-2a.2 Complainant refused to submit an affidavit to the investigator or to otherwise participate in the investigation. She requested a hearing before an EEOC Administrative Judge (AJ) on February 14, 2008. Complainant refused to answer interrogatories, did not appear for two scheduled depositions and otherwise failed to participate in discovery. Consequently, and after issuing a Show Cause Order and notifying complainant that her failure to cooperate would result in this dismissal of her complaint, the AJ assigned to the case dismissed the complaint on January 23, 2009.
In her Dismissal Order, the AJ instructed the agency to issue a final order pursuant to 29 C.F.R. � 1614.110(a), but instead, the agency issued a final decision on the merits of the complaint pursuant to 29 C.F.R. � 1614.110(b). In its decision, the agency found that complainant failed to cooperate at every stage of the proceeding and thus proffered no evidence in response to management's denial of the claim. The decision concluded that complainant failed to prove discrimination.
Complainant submitted no statement in support of her appeal. The agency, through its Law Department, urges the Commission to affirm the AJ's dismissal, evidently unaware that the agency's EEO arm had not complied with the AJ's directive to issue a final order pursuant to 29 C.F.R. � 1614.110(a).
Upon review of the record, we find that the AJ was correct in dismissing this complaint for Complainant's failure to cooperate with the EEO Counselor, with the investigator, and with the AJ's Hearing and Discovery related Orders. As noted by the AJ:
The Agency alleges, and supports by Declaration of attorney [name redacted], and various documents, that on November 14, 2008, the Complainant was noticed for deposition and subsequently failed to appear for her deposition on December 4, 2008; she failed to submit an affidavit and to respond to the Agency's Interrogatories and Document Requests, originally served on the Complainant on September 9, 2008, and re-served on November 10, 2008, pursuant to my Order of that date. The Complainant submitted a non-responsive response. The record shows the Complainant has again failed to appear for deposition or to cooperate with discovery and has not complied with the Acknowledgment Orders and Order dated November 10, 2008.
Administrative Judge's January 23, 2009 Dismissal Order at 2.
We further find that Complainant's refusal to participate rendered the record insufficient for a determination on the merits and that the agency should have issued a final order pursuant to 29 C.F.R. � 1614.110(a) rather than attempting to issue a final decision 29 C.F.R. � 1614.110(b). We find the agency's error, under these circumstances, harmless because by operation of 29 C.F.R. � 1614.109(i), the AJ's decision became the agency's final action, and we AFFIRM the dismissal of Agency Complaint No. 4A-100-0173-07.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960, Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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, 2010
__________________
Date
1 A decision in a related appeal, EEOC Appeal 0120091916, is being issued concurrently.
2 The agency dismissed the second claim pursuant to 29 C.F.R. � 1614.107(a)(1).
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0120091917
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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