05a01234
12-19-2000
Steve F. Brown, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (Pacific Area), Agency.
Steve F. Brown v. United States Postal Service
05A01234
December 19, 2000
.
Steve F. Brown,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Request No. 05A01234
Appeal No. 01991388
Agency No. 4F-926-1346-95
Hearing No. 340-97-3559X
DENIAL OF REQUEST FOR RECONSIDERATION
Complaint initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Steve
F. Brown v. United States Postal Service, EEOC Appeal No. 01991388
(April 18, 2000).<1> EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
Complainant's sole contention on request for reconsideration is
that the administrative judge (AJ) improperly denied complainant a
hearing by remanding his case to the agency for the issuance of a
Final Agency Decision due to complainant's failure to appear for a
scheduling conference. The record shows that on May 12, 1998, the
AJ issued a Scheduling notice notifying the parties that a telephone
conference call was scheduled for May 21, 1998, at 10:00 a.m., for
the purpose of discussing the adequacy of the agency's responses to
an August 5, 1997 Order regarding complainant's Motion to Compel.
By letter dated May 14, 1998, complainant asserted that his discovery
submission was �sufficient without further clarification and is
not otherwise deficient, such that the May 21, 1998 conference call
serves no apparent procedural or substantive purpose,� and therefore,
neither he nor his representative would be available for the May 21,
1998 conference call or for �subsequent similar, conference calls.� The
AJ notified complainant and his representative by telephone on May 20,
1998, that the May 21, 1998 conference call was necessary and that the
conference would occur as scheduled. On May 21, 1998, the telephone
conference was convened with complainant, complainant's representative,
and the agency's representative present. The AJ told the parties
that the purpose of the conference was to discuss the above-identified
discovery matter, and to approve witnesses for the hearing scheduled
for July 15, 1998. Before any substantive discussion of these matters
could occur, complainant's representative stated that he did not see the
need for further discussion regarding the discovery matter, and for that
reason was not willing to participate further in the conference call.
The AJ stated that the discovery matter and the approval of witnesses
did indeed need to be discussed and could only be discussed with both
parties present. Nevertheless, complainant's representative instructed
complainant to leave the conference call, which complainant did, and
complainant's representative then left the conference call.
By written Scheduling Notice dated and mailed May 21, 1998, the parties
were notified that a telephone conference call was scheduled for May 28,
1998, at 10:00 a.m., for the purpose of discussing the matters which were
not discussed during the May 21, 1998 conference call, specifically the
discovery matters and the approval of witnesses. The notice included
the following provision: �If complainant and his representative do not
participate in the scheduled conference call, I will remand complainant's
complaint to the agency pursuant to 29 C.F.R. � 1614.107(g). The agency
may thereafter either issue a Final Agency Decision based on the
information already in the file or dismiss the complaint.�
Prior to May 28, 1998, neither the complainant nor his representative
requested a postponement of the scheduled conference call. On May 28,
1998, at 10:00 a.m., the conference call was convened with complainant
and the agency's representative present. Complainant's representative
was not present for the conference call. At the outset of the call,
complainant stated that his representative had instructed him not to
participate in the conference call, and that complainant would therefore
not participate in the conference. The AJ told complainant that, because
he and his representative were refusing to participate in the conference
call, the complaint would be remanded to the agency as explained in the
May 21, 1998 notice. At about 10:30 a.m., complainant's representative
personally delivered to the AJ's office a memorandum stating that neither
he nor complainant would be available for the telephone conference call
that day. Accordingly, the AJ remanded the matter to the agency without
a hearing.<2>
Complainant argues in his request for reconsideration that he
received unfair treatment since �the record shows that Postal Service
representatives have sometimes failed to show up at teleconferences,
seldom have they given prior notice when the agency could not attend,
and worst of all they failed for months to notify the judge that
the proceedings could resume once the judge agreed to suspend the
proceeding to accommodate the Postal Service.� We find no evidence
of such failures by the agency in the record. However, assuming such
failures have occurred, there is no indication that such failures involved
blatant refusals by the agency to participate in the hearing process.
Since complainant's actions served to effectively thwart the hearing
process, we find that the AJ properly remanded the matter to the agency
without a hearing.
After a review of the complaint's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01991388 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on this request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
December 19, 2000
__________________
Date
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 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The agency subsequently issued a FAD on the merits of the complaint
and determined that discrimination did not occur.