01a22356_r
06-14-2002
Jenny A. Hudson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jenny A. Hudson v. United States Postal Service
01A22356
June 14, 2002
.
Jenny A. Hudson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22356
Agency No. 4E-852-0080-00
Hearing No. 350-A0-8357X
DECISION
Upon review, the Commission finds that the agency's final action dated
March 7, 2002, dismissing complainant's complaint is improper for
the reasons set forth herein. In her complaint, complainant alleged
discrimination based on race (Navajo) when: (1) on January 13, 2000,
she was denied a promised career position; (2) she was informed that an
employee from Detroit had been selected; and (3) a coworker told her that
she had no rights as a casual employee. The record indicates that after
completion of the investigation of the complaint, complainant requested a
hearing before an EEOC Administrative Judge (AJ). On September 27, 2001,
the AJ issued his order dismissing the complaint for failure to cooperate.
Specifically, the AJ stated that complainant could not be reached for
a pre-hearing scheduled for April 4, 2001. The AJ further indicated
that by an Order to Show Cause, dated September 6, 2001, complainant
was informed to show good cause, in writing, within 15 calendar days
from its receipt why the complaint should not be dismissed for failure
to cooperate, but complainant failed to respond. In its final action,
the agency implemented the AJ's decision.
It is noted that the AJ has the authority to sanction a party for failure
without good cause shown to fully comply with an order. 29 C.F.R. �
1614.109(f)(3). However, 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 Hale
v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000)
(citations omitted). Upon review, the Commission finds that complainant's
failure to respond to the AJ's Show Cause Order does not rise to the
level of contumacious conduct. Therefore, to the extent that the AJ
intended to sanction complainant, the Commission finds that the AJ's
sanction to dismiss the complaint was improper. In the instant case, the
Commission finds that the AJ should have canceled the hearing and remanded
the complaint to the agency. Furthermore, the agency's dismissal of the
complaint on the procedural grounds for failure to cooperate when it had
sufficient information on which to base on adjudication was improper in
the instant case under 29 C.F.R. � 1614.107(a)(7). The Commission finds
that since the investigation of the complaint was completed, the agency
should have issued a decision on the merits of the complaint.
Accordingly, the agency's decision is hereby REVERSED. The complaint
is REMANDED to the agency for further processing in accordance with the
Order below.
ORDER
The agency, within sixty (60) calendar days of the date this decision
becomes final, shall take final action on the merits in accordance with
29 C.F.R. � 1614.110(b). A copy of the agency's final 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
June 14, 2002
__________________
Date