01A12962_r
03-28-2002
Sherri M. Nicholson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sherri M. Nicholson v. United States Postal Service
01A12962
March 28, 2002
.
Sherri M. Nicholson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12962
Agency No. 4-C-442-0081-00
DECISION
Upon review, the Commission finds that the agency's final decision dated
February 26, 2001, dismissing complainant's complaint for failure to
cooperate is improper pursuant to 29 C.F.R. � 1614.107(a)(7).
Complainant filed a complaint alleging she was discriminated against on
the basis of disability (perceived unspecified) when after being hired on
November 6, 1999, the job offer was revoked; and thereafter on November
17, 1999, complainant was told that she was rated a "high risk" on her
pre-employment physical and thus, was not hired. Complainant elected
to have her complaint heard before an Administrative Judge (AJ).
The AJ issued an Order to Show Cause to complainant, which informed
complainant that she had 15 days to explain why her complaint should not
be dismissed for complainant's failure to participate in a telephonic
prehearing conference on December 11, 2000. Complainant was also
informed that failure to respond would result in the imposition of
sanctions. Complainant responded by letter on December 15, 2000,
but failed to explain why she had not participated in the telephonic
prehearing conference. By order dated December 21, 2000, another
telephonic prehearing conference was scheduled for January 18, 2001.
The complainant was directed to provide the agency representative with a
telephone number where she could be reached for the prehearing conference.
Complainant failed to comply and could not be reached at the telephone
number provided in her investigative file. On January 18, 2001, the
AJ dismissed complainant's complaint, pursuant to � 1614.107(a)(6),
because: 1) complainant failed to participate in an telephonic prehearing
conference on December 11, 2000; 2) complainant failed to provide an
explanation for her lack of participation in the prehearing conference;
3) complainant failed to provide the agency with a valid telephone number
for the January 18, 2000 prehearing conference; and 4) complainant did
not participate in the January 18, 2000 telephonic prehearing conference.
In its final order, the agency, implementing the AJ's decision, dismissed
the complaint for failure to cooperate, pursuant � 1614.107(a)(7).
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 Appeals No. 01A03341 (December
8, 2000) (citations omitted). Upon review, the Commission finds that
the complainant's failure to participate in the prehearing conference
does not rise to the level of contumacious conduct. Therefore, 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 cancelled the hearing and remanded the complaint to the agency for
issuance of a decision on the merits.
Accordingly, the agency's decision is hereby REVERSED. The complaint
is REMANDED for further processing in accordance with the Order below.
ORDER
The agency, within sixty (60) calendar days of the date this decision
becomes final, is ordered to take final action 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
March 28, 2002
__________________
Date