01a42767
08-03-2005
Marco J. Thomas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marco J. Thomas v. United States Postal Service
01A42767
August 3, 2005
.
Marco J. Thomas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42767
Agency No. 4K-220-0064-02
Hearing No. 100-2003-8242X
DECISION
Complainant appeals to the Commission from the agency's February 25, 2004
decision dismissing his complaint. Complainant alleges discrimination
on the bases of disability and reprisal when management subjected him
to a hostile work environment when:
On March 16, 2002, he was instructed to case and deliver 13 feet of mail
within 8 hours;
On March 16, 2002, his request for 1 hour of overtime was denied;
On March 15, 2002, he was issued a Letter of Warning;
He was charged leave without pay (LWOP) for the week of May 20 - 26, 2002;
He suffered stress that prevented him from returning to work through
July 3, 2002;
On December 26, 2001 and January 31, 2002, he was placed on LWOP causing
him the inability to pay his bills; and,
On August 1 - 3, 2002, he put in a leave slip for overtime and was denied
and harassed.
On October 21, 2003, the agency served its first set of discovery requests
on complainant by facsimile. Complainant did not file a response, and on
November 18, 2003, the agency filed a Motion to Compel. On December 1,
2003, complainant filed deficient responses to the agency's discovery
requests, and on December 2, 2003, moved for the Motion to Compel to
be found moot. On December 4, 2003, the agency's Motion to Compel
was denied as moot, but subject to renewal if complainant's discovery
responses were inadequate. On December 12, 2003, the agency renewed
its Motion to Compel, which complainant opposed. On December 29, 2003,
the Administrative Judge (AJ) granted the agency's Motion to Compel
in part, and denied it in part. The AJ's decision on the Motion to
Compel stated that complainant �shall produce the specific answers to
the Agency's discovery requests . . . within 15 calendar days of the
date of this order, i.e., by close of business on January 13, 2004.
. . . Failure to do so may result in appropriate sanctions under EEOC
Regulations at 29 C.F.R. � 1614.109(f)(3).� On January 13, 2004,
complainant moved for an extension of time to provide the agency
with supplemental responses to its discovery. On January 20, 2004,
the AJ issued an Order granting an extension until January 21, 2004.
The order further provided that �[n]o further extensions [would]
be granted.� On January 21, 2004, complainant filed a second motion
for an extension of time, which was denied by the AJ that same day.
The agency never received any supplemental discovery from complainant.
On January 23, 2004, the agency filed a motion for sanctions, to dismiss,
and for a stay of filing a motion for summary judgment pending resolution
of the instant motion. On February 19, 2004, the AJ issued an Order,
dismissing complainant's case pursuant to 29 C.F.R. � 1614.107(a)(7)
for failure to prosecute. The agency, on February 25, 2004, issued a
decision dismissing complainant's complaint for failure to prosecute
pursuant to 29 C.F.R. � 1614.107(a)(7). Complainant appeals from the
February 25, 2004 decision.
We find that it was a proper sanction for the AJ to dismiss complainant's
case from the hearing phase. Pursuant to 29 C.F.R. � 1614.107(a)(7),
however, an agency may dismiss a complaint for failure to prosecute
where complainant has failed to respond to requests within 15 days
of receipt, or if the response does not address the agency's request,
provided that the request included a notice of the proposed dismissal.
There is no indication that the agency, before or after the AJ's
Order, made a request with the requisite notice of proposed dismissal.
Therefore, the agency's dismissal at this time is improper. We shall
remand the matter so that the agency may issue a decision on the merits
of the complaint (without a hearing).
The agency's decision dismissing complainant's complaint is REVERSED, and
we REMAND the matter to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER
The agency shall issue a decision on the complaint within 60 days of
the date this decision becomes final pursuant to 29 C.F.R. � 1614.110.
A copy of the agency's 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 3, 2005
__________________
Date