01A02847
12-13-2000
Patricia A. Peters, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Patricia A. Peters v. United States Postal Service
01A02847
December 13, 2000
Patricia A. Peters, )
Complainant, )
)
v. ) Appeal No. 01A02847
) Agency No. 1-C-441-0050-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dismissing her complaint of unlawful employment
discrimination brought under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. � 2000e et seq., the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Section 501
of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1>
We accept the appeal pursuant to 29 C.F.R. � 1614.405.
The record shows that complainant first contacted an EEO Counselor on
December 28, 1998, and subsequently filed a formal complaint on March
3, 1999. In her complaint, complainant claims that she was subjected to
discrimination on the bases of race, sex, age, and disability when she was
denied access to conveniently located parking spaces for disabled persons,
as of November 13, 1998. Following an investigation of the complaint,
the agency provided complainant with a copy of the investigative report
and notice of her right to request a hearing before an EEOC Administrative
Judge (AJ) or a final agency decision. Complainant timely requested a
hearing before an AJ.
On November 2, 1999, the AJ issued a Status Report and Order dismissing
the complaint for failure to prosecute. The AJ determined that
complainant failed to appear for a pre-hearing conference on that same
day, without telephonic explanation to the AJ for her absence. In a
FAD dated January 19, 2000, the agency adopted the AJ's findings and
conclusions.
An AJ has the authority to sanction either party for failure without good
cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3);
EEOC Management Directive 110 Chapter 7, pp. 9-10 (1999). Such sanctions
may 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. Id. However, such
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) (citing
McKelvey v. AT&T Technologies, Inc., 789 F.2d 1518 (11th Cir. 1986)).
Here, we find that the AJ did not provide proper notice to the parties
prior to dismissing the complaint, nor did he tailor the sanction for the
particular case. The AJ issued a Status Report and Order on November
2, 1999, dismissing the complaint because complainant failed to appear
for the prehearing conference or telephone to explain her absence.
There is no evidence of record that complainant was on notice of the
consequences of failure to appear at the prehearing conference nor is
there any evidence that complainant would not have been properly deterred
from similar failures to appear or that the agency would not have been
equitably treated by a lesser sanction, i.e., excluding witnesses or
evidence subsequently proffered by complainant, waiving any objections
complainant may have had to subsequent scheduling, etc. We find
that based on the present record, dismissal as a sanction under these
circumstances was unduly harsh and constituted an abuse of discretion
by the AJ. Complainant's actions in this case may evidence neglect,
but not contumacious conduct.
For these reasons, we conclude that the AJ's dismissal of the complaint,
adopted by the agency, was improper. The agency's decision adopting
the AJ's dismissal is hereby vacated and the complaint is remanded for
a hearing.
CONCLUSION
Accordingly, the agency's decision is REVERSED, and the complaint is
remanded for a hearing.
ORDER
The above complaint is remanded to the EEOC's Cleveland District Office
for scheduling of a hearing in an expeditious manner. The agency is
directed to submit a copy of the complaint file to the Hearings Unit
of the Cleveland District Office within fifteen (15) calendar days of
the date this decision becomes final. The agency shall provide written
notification to the Compliance Officer at the address set forth below
that the complaint file has been transmitted to the Hearings Unit.
Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 et seq., and the agency
shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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:
December 13, 2000
Date Carlton M. Hadden, Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 29 C.F.R. Part 1614, where applicable, in deciding the present
appeal. The regulations, as amended, may also be found at the Commission's
website at www.eeoc.gov.