01a10941
10-18-2001
Senthia M. Covin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Southeast Area, Agency.
Senthia M. Covin v. United States Postal Service
01A10941
October 18, 2001
.
Senthia M. Covin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Southeast Area,
Agency.
Appeal No. 01A10941
Agency No. 4-H-327-0038-99
Hearing No. 150-99-8741X
DECISION
INTRODUCTION
Complainant timely filed this appeal from the final agency decision (FAD)
dismissing her complaint alleging the agency had unlawfully discriminated
against her in violation of Title VII of the Civil Rights Act of 1964
(Title VII), 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 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. Complainant claims the agency discriminated
against her on the bases of race (Black), color (black), sex (female),
age (41), disability (post-traumatic headaches and vertigo, etc.)
and in retaliation for prior EEO activity when:
1. On approximately September 1, 1998, she was intimidated into
returning to full duty; and
On October 20, 1998, she was kept from returning to full duty when she
was ready to do so.
For the reasons discussed below, we VACATE the agency's final decision
and REMAND.
BACKGROUND
The record reveals the following. Complainant was at all times
pertinent to this matter employed by the agency as a Letter Carrier at
the Palmetto Park Annex in Boca Raton, Florida. On December 23, 1998,
she filed a formal EEO complaint with the agency, alleging that she had
been discriminated against by the agency on the basis of her disability,
as discussed above. In response to her complaint, an EEO investigation
was initiated. The complaint was amended during the EEO investigation
to include allegations of unlawful discrimination on the bases of race
(Black), color (black), sex (female), age (41), and retaliation for prior
EEO activity. Complainant received the investigator's report on August
12, 1999, and on August 16 she filed a written request for a hearing
before an Administrative Judge (AJ).
On September 1, 2000, a Notice of Pre-Hearing Conference and Hearing
(notice) was mailed to complainant. Neither party contends that the
notice was not timely received by complainant. The notice indicated that
the pre-hearing conference had been scheduled to be held telephonically,
on September 29, 2000 at 1:00 p.m. The notice continued in pertinent
part as follows:
The agency representative and the Complainant must be present at the
pre-hearing conference. The agency is responsible for (1) making the
necessary arrangements, including making available a speaker telephone
in the event the parties will be in the same room and (2) initiating
the telephonic conference call to the participating parties and the
Administrative Judge. In the event that the parties will not be in the
same room at the time of the pre-hearing conference, the Complainant
must provide the Agency representative with a telephone number where
the Complainant may be contacted for the pre-hearing conference.
The notice also provided, in bold print, as follows:
TAKE NOTICE THAT unless some other prior arrangement is made with or
an extension is granted by the Administrative Judge, SANCTIONS WILL BE
IMPOSED for (a) a party's failure to appear at the pre-hearing conference
. . . . Sanctions will include but are not limited to . . . dismissal
. . . .
On September 29, complainant and her representative failed to appear for
the pre-hearing conference. On October 5, the AJ issued his decision
dismissing the complaint for failure to prosecute. In support of
his decision, he cited 29 C.F.R. � 1614.109(b), which provides that
an AJ may dismiss a complaint �pursuant to � 1614.107, on their own
initiative, after notice to the parties, or upon an agency's motion to
dismiss a complaint.� The AJ also cited 29 C.F.R. � 1614.107(a)(6),
which requires the agency to dismiss complaints �where the complainant
cannot be located, provided that reasonable efforts have been made to
locate the complainant and the complainant has not responded within 15
days to a notice of proposed dismissal sent to his or her last known
address.�<1> The AJ stated in his decision, issued six days after the
pre-hearing conference had been scheduled to be held, that �[t]o date the
Complainant has not responded to the Administrative Judge's notice that
complaint would be dismissed.� The AJ concluded that the complainant
had failed to prosecute her claim, and dismissed the complaint.
ANALYSIS AND FINDINGS
An AJ has the authority to impose appropriate sanctions, including
dismissal of the complaint, on a party who fails to appear for a
conference or hearing, pursuant to an order of an AJ. See EEOC
Management Directive 110, Chapter 7, p. 9 (November 9, 1999); 29
C.F.R. � 1614.109(b). However, any sanctions imposed must be specifically
tailored to address the underlying conduct at issue. Hale v. Department
of Justice, EEOC Appeal No. 01A03341 (December 12, 2000). If a lesser
sanction than that imposed would have sufficed to deter the conduct at
issue as well as to equitably remedy the opposing party, the imposition of
a harsher sanction may rise to the level of an abuse of discretion. Id.
The sanction of dismissal of a complaint is �only appropriate in extreme
circumstances, where the complainant has engaged in contumacious conduct,
not simple negligence.� Id. A person's conduct is contumacious when
it is �willfully stubborn and disobedient.� Black's Law Dictionary 330
(6th ed. 1990). Contumacious behavior or disruptive conduct may include
any unprofessional or disrespectful behavior; degrading, insulting
or threatening verbal remarks or conduct; the use of profanity; or
conduct engaged in for the purpose of improperly delaying the hearing.
EEOC Management Directive 110, Chapter 7, p. 25 (November 9, 1999).
In cases where sanctionable conduct has occurred, yet there is no evidence
the conduct was contumacious, AJs should instead avail themselves of
the sanction provisions contained within 29 C.F.R. � 1614.109(f)(3).
The available sanctions include drawing an adverse inference that the
requested information, or the testimony of the requested witness, would
have reflected unfavorably on the party refusing to provide the requested
information; considering the matters to which the requested information
or testimony pertains to be established in favor of the opposing party;
excluding other evidence offered by the party failing to produce the
requested information or witness; issuing a decision fully or partially in
favor of the opposing party; or taking such other actions as appropriate.
29 C.F.R. � 1614.109(f)(3).
In the present appeal, the inaction by complainant which gave rise
to the sanction of dismissal was her failure to attend the telephonic
pre-hearing conference. While this act may be considered negligent on her
part, there is no allegation that such negligence was coupled with any
contumacious acts which would make dismissal an appropriately-available
sanction. As a result, we conclude that the dismissal of this complaint
was inappropriate in light of the circumstances, and therefore VACATE
the agency's final decision adopting the AJ's dismissal, and REMAND for
continued processing of the complaint as described in the order below.
We note that the AJ who presides over the hearing in this matter is
authorized to impose a more appropriate sanction, as described above,
upon complainant as a penalty for her failure to appear at the September
29, 2000 pre-hearing conference.
ORDER (E0900)
The above complaint is remanded to the EEOC's Miami 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 (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, 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, 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
October 18, 2001
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1 We note that this basis for dismissal is only available to the agency
prior to a request for a hearing, 29 C.F.R. � 1614.107(a), and that
complainant made her formal request for a hearing prior to the conduct
giving rise to the dismissal of her complaint. Even if this regulation
was available for application in the instant case, there is no evidence
that reasonable efforts were made to locate the complainant or that a
letter of proposed dismissal had been sent to her last known address,
and to which she had not timely responded. Therefore, this regulation
provides no support for the agency's decision to dismiss the complaint.