Sabrina St. John-Metoyer, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity CommissionDec 3, 2001
01992504 (E.E.O.C. Dec. 3, 2001)

01992504

12-03-2001

Sabrina St. John-Metoyer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.


Sabrina St. John-Metoyer v. United States Postal Service (Southwest Area)

01992504

December 3, 2001

.

Sabrina St. John-Metoyer,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Southwest Area),

Agency.

Appeal No. 01992504

Agency No. 4-G-770-0744-98

DECISION

INTRODUCTION

Sabrina St. John-Metoyer (�complainant�) filed several complaints

against the United States Postal Service (�the agency�) alleging that the

agency had discriminated against her on the bases of her race (Black),

sex (female), disability (stress-related condition), and retaliation

(for prior EEO activity), in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of

the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.

The agency dismissed these complainants, claiming that complainant

had failed to cooperate in its investigation of the relevant claims.

Complainant filed a timely appeal with the United States Equal Employment

Opportunity Commission (�EEOC� or �the Commission�) requesting that

we overturn the agency's dismissal. We accepted complainant's appeal

pursuant to 29 C.F.R. � 1614.405(a). For the reasons set forth below, we

conclude that the agency's final decision (�FAD�) should be vacated, and

that the complainant's complaints should be remanded for an investigation

and/or a hearing before an EEOC administrative judge.

ISSUE PRESENTED

Whether the agency erred in dismissing the relevant complaints for

complainant's failure to cooperate in the agency's investigation of the

claims the complaints contain

BACKGROUND

In September and October of 1998, complainant filed three separate

discrimination complaints, alleging that the agency had discriminated

against her on the above-described bases when it failed to rate or

interview her for certain agency positions, and when it failed to

consider (or hire) her for jobs listed in various agency vacancy

announcements (i.e., Vacancy Announcement Nos. 48-98, 33-98, and

46-98). See Discrimination Complaint No. 4-G-770-0744-98 (Aug. 31,

1998); Discrimination Complaint No. 4-G-770-0745-98 (Aug. 31, 1998);

and Discrimination Complaint No. 4-G-770-0811-98 (Oct. 1, 1998).

The agency responded with a letter indicating that it had accepted the

three complaints, and that it was consolidating them for investigation

under agency Discrimination Complaint No. 4-G-770-044-98 (i.e., the

instant complaint). See Agency's Letter Accepting and Consolidating

Complaints for Investigation (Jan. 5, 1999).<1>

It appears that the agency then proceeded to investigate the relevant

claims. On October 28, 1998, agency EEO officials wrote to complainant,

explaining that:

At this stage of the complaint, you are required to submit all

information and documentation relating to your charge of discrimination.

The enclosed affidavit should be completed in it's [sic] entirety . . . .

This information must be returned within fifteen days of receipt of

this notice. Failure to return the affidavit in the allotted time,

with the information requested, may result in closure or dismissal of

your complaint . . . for failure to prosecute.

Agency's First Request for Affidavit (Oct. 28, 1998).

A copy of a signed receipt for certified mail contained in the record

indicates that complainant received this first request on November 6,

1998. See Receipt for Certified Mail (Sent Oct. 30, 1998 and Received

Nov. 6, 1998). She apparently never replied to the request, however.

Consequently, on December 4, 1998, the agency sent a follow-up letter,

asking once again for complainant's affidavit and related information.

This time, the agency said:

On [November 6, 1998] you received the Agency's first request that you

complete an affidavit and return it to the office within fifteen days

of receipt. To date, you have failed to respond. Please complete the

affidavit that was previously sent to you and return it to the EEO Office

within fifteen days of receipt of this notice . . . . Failure to [do so]

may result in closure or dismissal of your complaint . . . for failure

to prosecute.

Agency's Second Request for Affidavit (Dec. 4, 1998).

Another signed receipt for certified mail found in the record confirms

that complainant received this second request on December 8, 1998.

See Receipt for Certified Mail (Sent Dec. 4, 1998 and Received Dec. 8,

1998). However, complainant apparently never responded to this agency

request either. Consequently, on January 28, 1999, the agency issued

a final decision dismissing the associated complaints for complainant's

failure to cooperate in its investigation of the claims contained therein.

See Agency's Final Decision Dismissing Complaint No. 4-G-770-0744-98

(Jan. 26, 1999). According to this FAD:

On October 28, 1998, an affidavit was mailed via certified mail to you for

completion concerning your complaint. Records indicate that you received

the request on November 6, 1998, and you did not respond to the request.

On December 4, 1998, a second request was mailed to you, which you

received on December 8, 1998. Again, you have failed to respond to the

request for information pertaining to your complaint . . . . [Thus] [y]ou

have failed to cooperate with the agency by not providing the requested

information in the prosecution of your complaint despite the agency's

notice that failure to comply with the repeated requests would result

in the dismissal of your complaint. Since you have failed to properly

respond to the agency's request, your complaint is dismissed . . . .

Id. at 2.

Complainant filed a timely notice with this Commission challenging

this FAD. See Complainant's Notice of Appeal of Agency's Dismissal of

Complaint No. 4G-770-744-98 (Feb. 5, 1999). We accepted this notice,

and docketed it as the instant appeal. See Office of Federal Operations

Letter Acknowledging Receipt of Appeal (Feb. 10, 1999). Subsequently,

complainant's representative filed a brief statement in support of

this appeal. He argued that:

The agency dismissed this appeal [sic] in error by alleging that the

complainant has failed to pursue. Nothing could be further from

the truth. The agency has cited an affidavit which has requested

information already supplied to the agency several times. The agency

has all the information needed in the file to investigate the complaint.

Thus, we ask for a hearing.

Complainant's Statement in Support of Appeal (Feb. 5, 1999).

ANALYSIS AND FINDINGS

We turn now to the question of whether the agency properly dismissed

the complaints at issue for complainant's failure to cooperate. It is

true that agencies may, in limited circumstances, dismiss a complaint

of discrimination when the complainant refuses to prosecute the claims.

Under 29 C.F.R. � 1614.107(a)(7), a complaint may be dismissed if �the

agency has provided the complainant with a written request to provide

relevant information or otherwise proceed with the complaint, and the

complainant has failed to respond to the request within 15 days of its

receipt or the complainant's response does not address the agency's

request, provided that the request included a notice of the proposed

dismissal.� 29 C.F.R. � 1614.107(a)(7); see also Braide v. United

States Postal Service, EEOC Appeal No. 01A14211 (Oct. 4, 2001); Alcocer

v. Department of the Treasury, EEOC Appeal No. 01A14542 (Sept. 27, 2001);

and Henning v. United States Postal Service, EEOC Appeal No. 01A04924

(Sept. 19, 2001). Given the precise wording of the agency's two requests

for affidavits described above (and complainant's failure to respond to

them), these requirements appear to have been met here.

However, 29 C.F.R. � 1614.107(a)(7) also provides that, �[i]nstead of

dismissing for failure to cooperate, the complaint may be adjudicated

[by the agency] if sufficient information for that purpose is available.�

29 C.F.R. � 1614.107(a)(7). We find that, based on the record before

us, there is sufficient information to allow the investigation of the

relevant claims to proceed. For example, the agency �Information for

Precomplaint Counseling� forms filled out for each complaint at issue

(as well as the formal complaints themselves) detail the disputed

incidents, important dates, responsible agency officials, and bases

of discrimination. The agency therefore had ample facts to enable it

to proceed with a full investigation on the relevant claims. See, e.g.,

Informal Complaint of Discrimination No. 4-G-770-0744-98 (Jul. 22, 1998),

at 1-2; Informal Complaint of Discrimination No. 4-G-770-0745-98 (Jul. 22,

1998), at 1; and Informal Complaint of Discrimination No. 4-G-770-0811-98

(Aug. 13, 1998), at 1-2. Consequently, the agency's dismissal for

failure to cooperate was premature. See, e.g., Jackson v. Department of

the Army, EEOC Appeal No. 01993200 (Nov. 19, 2001); Bowers v. Department

of Justice, EEOC Appeal No. 01A14276 (Oct. 16, 2001); Powers v. Office

of Government Ethics, EEOC Appeal No. 01A11566 (Oct. 11, 2001); Edwards

v. United States Postal Service, EEOC Appeal No. 01A04965 (Oct. 4, 2001);

and Derrick v. Department of Defense, EEOC Appeal No. 01A02790 (Aug. 28,

2001); cf. Dogans v. Department of Housing and Urban Development, EEOC

Appeal Nos. 0199560, 01993253, and 01995577 (May 31, 2000) (noting that

this Commission �has long held that, as a general rule, an agency should

not dismiss a complaint where it has sufficient information on which

to base an adjudication,� and that use of 29 C.F.R. � 1614.107(a)(7)

is inappropriate �where there is sufficient information in the record to

determine whether to accept the complainant's claims without any further

input from complainant�); and Rusk v. Social Security Administration,

EEOC Appeal No. 01A04883 (Aug. 3, 2001) (providing that when an agency

finds that there is sufficient information in the record to enable it

to define the complaint and accept it for investigation � and when the

agency in fact does so and completes an investigation of the complaint

� the agency should not dismiss the complaint for failure to prosecute,

but rather should issue a decision on the merits).

The agency's dismissal was improper for another reason. Even when the

specific standards of 29 C.F.R. � 1614.107(a)(7) have been satisfied,

EEOC still has been quite reluctant to uphold dismissals under this rule.

As a result, we have engrafted an additional requirement onto 29 C.F.R. �

1614.107(a)(7) by limiting its application to cases where there is

a clear record of delay or �contumacious conduct� by the complainant.

See, e.g., Bowers v. Department of Justice, EEOC Appeal No. 01A14276

(Oct. 16, 2001); Laity v. Department of Veterans Affairs, EEOC Request

No. 05990104 (Aug. 16, 2001); Dogans v. Department of Housing and

Urban Development, EEOC Appeal Nos. 01991560 and 01993253 (May 31,

2000); Card v. United States Postal Service, EEOC Request No. 05970095

(Apr. 23, 1998); Anderson v. United States Postal Service, EEOC Request

No. 05940850 (Feb. 24, 1995); and Kroeten v. United States Postal Service,

EEOC Request No. 05940451 (Dec. 22, 1994).

In this case, complainant undeniably (and perhaps unjustifiably)

failed to respond to agency requests for information. Yet the

agency has presented no evidence demonstrating how complainant's

conduct was contumacious. While our decisions have not yet yielded

a singular definition of �contumacious conduct� in this context,

Black's Law Dictionary has defined it generally as �wilfully stubborn

and disobedient conduct . . . .� Black's Law Dictionary (6th ed. 1990);

cf. Random House Webster's Unabridged Dictionary (2nd ed. 1999) (defining

�contumacious� as �stubbornly perverse or rebellious; willfully and

obstinately disobedient�); and The American Heritage Dictionary of the

English Language (4th ed. 2000) (defining �contumacious� as �obstinately

disobedient or rebellious; insubordinate�). We see no reason to depart

from such a clear and concise interpretation of this critical phrase.

And, from our reading of the (admittedly sparse) record before us, we

certainly cannot conclude that complainant has displayed this sort of

defiant disobedience that alone can legitimize the use of the ultimate

sanction of dismissal.<2> See, e.g., Johnston v. United States Postal

Service, EEOC Appeal No. 01A14091 (Oct. 5, 2001); Anderson v. United

States Postal Service, EEOC Appeal No. 01997010 (Sept. 7, 2001);

and Turner v. Department of Transportation, EEOC Appeal No. 01996731

(Aug. 27, 2001); cf. Fitzgerald v. United States Postal Service, EEOC

Appeal No. 01A03492 (Aug. 28, 2001).

CONCLUSION

Accordingly, the agency's final decision dismissing Discrimination

Complaint No. 4-G-770-044-98 � and the accompanying Discrimination

Complaint Nos. 4-G-770-045-98 and 4-G-770-0811-98 � is vacated, and these

complaints are hereby remanded to the agency for investigation and/or for

a hearing before an EEOC administrative judge. We note that, at least

as of the time complainant filed a statement in support of her appeal,

she wanted a hearing. See Complainant's Statement in Support of Appeal

(Feb. 5, 1999).<3> The agency must therefore provide complainant with

notice of her immediate right to a hearing. The complainant, in turn,

must comply fully with any and all orders and requests for information

made during the hearing process (and must cooperate completely with

any agency investigation conducted in lieu of, or in conjunction with,

a hearing). See, e.g., 29 C.F.R. � 1614.108(c)(1) (providing that

a complainant must produce any and all documentary and testimonial

evidenced deemed necessary by agency officials assigned to investigate the

complaint(s)); and 29 C.F.R. � 1614.109(f)(1) (similarly stating that a

complainant must produce such documentary and testimonial evidence deemed

necessary by an administrative judge appointed to hear the complaint(s)).

Complainant's failure to do so could lead to the imposition of sanctions �

up to and including dismissal (albeit on different facts) � in the future.

See, e.g., 29 C.F.R. � 1614.108(c)(3); and 29 C.F.R. � 1614.109(f)(3);

cf. 29 C.F.R. � 1614.404(c).<4>

ORDER

The agency is ordered to process the remanded Discrimination Complaint

No. 4-G-770-0744-98 (and its companion Discrimination Complaint

Nos. 4-G-770-0745-98 and 4-G-770-0811-98) in accordance with 29 C.F.R. �

1614.108. The agency shall acknowledge to complainant that it has

received the remanded complaint(s) within thirty (30) calendar days of the

date this decision becomes final, and shall notify the complainant that

she has an immediate right to request a hearing and decision from an EEOC

administrative judge on the complaint(s). If a hearing is not requested,

the agency shall proceed to investigate the relevant complaint(s), and

shall issue to complainant a copy of the investigative file and also shall

notify complainant of the appropriate rights within one hundred fifty

(150) calendar days of the date this decision becomes final, unless

the matter is otherwise resolved prior to that time. If complainant

requests a final decision without a hearing, the agency shall issue a

final decision within sixty (60) days of receipt of complainant's request.

A copy of the agency's letter of acknowledgment to complainant and a

copy of the notice that transmits the investigative file and notice of

rights 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 complainant. If the

agency does not comply with the Commission's order, complainant may

petition the Commission for enforcement of the order. See 29 C.F.R. �

1614.503(a). 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, 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). If 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 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 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; EEO MD-110, at 9-18. 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 the

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with the 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 complainant's complaint. However, if complainant wishes

to file a civil action, complainant has the right to file such action

in an appropriate United States District Court within ninety (90)

calendar days from the date that complainant receives this decision.

In the alternative, complainant may file a civil action after one

hundred and eighty (180) calendar days of the date complainant filed

complainant's complaint with the agency, or filed complainant's appeal

with the Commission. If complainant files a civil action, complainant

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 complainant's case in court. �Agency� or �department�

means the national organization, and not the local office, facility

or department in which complainant works. Filing a civil action will

terminate the administrative processing of the complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If complainant decides to file a civil action, and if complainant does

not have or cannot afford the services of an attorney, complainant may

request that the Court appoint an attorney to represent complainant and

that the Court permit complainant 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 complainant's 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 3, 2001

__________________

Date

1This January 5, 1999 letter was actually

sent to correct an original acceptance letter which had been sent

to complainant on October 23, 1998. The October 23, 1998 letter had

erroneously limited the scope of the agency's investigation to incidents

related only to agency Vacancy Announcement Nos. 48-98 and 33-98 (i.e.,

it omitted mention of agency Vacancy Announcement No. 46-98). Thus,

the subsequent January 5, 1999 acceptance letter corrected this earlier

mistake. Compare Agency's Letter Accepting and Consolidating Complaints

for Investigation (Oct. 23, 1998), at 1, with Agency's Letter Accepting

and Consolidating Complaints for Investigation (Jan. 11, 1999), at 1.

2 For instance, in complainant's appeal brief, her representative notes

that the affidavit the agency twice sought �requested information already

supplied to the agency several times.� See Complainant's Statement

in Support of Appeal (Feb. 5, 1999). If true, this would severely

undermine any agency claim of contumacious conduct by complainant.

Unfortunately for the agency, the record does not contain either the

affidavit in question, a description of the exact information the agency

was seeking, or any evidence disproving that complainant had indeed

supplied such information �several times.� If the agency is privy to

details that would further support a showing of contumacious conduct,

it has not presented them to us (and we see no reason to infer them).

3Indeed, as recently as April of 2001, complainant requested a hearing

on the instant complaint (albeit inappropriately and erroneously, given

that this appeal was pending at the time). See Order of Dismissal (May

16, 2001) (in which an EEOC administrative judge rejected complainant's

request for a hearing in this case, since the agency had already issued

a final agency decision on the relevant complaints and such complaints

had already been appealed by complainant to this Commission).

4As a final note, we urge the agency to consider the extent

to which its processing of an earlier complaint filed by this

complainant � Discrimination Complaint No. 4-G-770-0596-98 � may

affect the agency's handling of the complaint(s) being remanded here.

It appears that Discrimination Complaint No. 4-G-770-0596-98 concerned

a vacancy announcement at issue in one of the instant complaints

(specifically, Discrimination Complaint No. 4-G-770-0745-98). See, e.g.,

St. John-Metoyer v. United States Postal Service, EEOC Appeal No. 01990123

(Nov. 5, 1999) (indicating that the agency previously accepted for

investigation, as part of Discrimination Complaint No. 4-G-770-0596-98, a

claim related to Vacancy Announcement No. 33-98. This same agency vacancy

notice was at issue in Discrimination Complaint 4-G-770-0745-98, which

was of course consolidated with the instant complaint.) Interestingly,

the agency does not specifically reference this particular vacancy

announcement in its FAD (though it does explicitly mention the other

two vacancy announcements at issue in the consolidated complaints

considered herein). See Agency's Final Decision Dismissing Complaint

No. 4-G-770-0744-98 (Jan. 26, 1999), at 1. We cannot tell from the

record whether this omission was conscious or inadvertent.