01a10836
06-14-2001
Ana Po, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ana Po v. United States Postal Service
01A10836
June 14, 2001
.
Ana Po,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10836
Agency No. 1F-941-1145-94
Hearing No. 370-99-2544X
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from the agency's
final action dismissing her formal complaint of unlawful employment
discrimination 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 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the reasons that follow, the final agency action is VACATED.
ISSUE PRESENTED
The issue presented in this appeal is whether the formal complaint was
properly dismissed when the complainant failed to comply with an order
of the Administrative Judge (AJ) directing her to provide a witness list.
BACKGROUND
Complainant, employed by the agency as a Mail Handler at the time of the
alleged discriminatory events, filed a formal complaint dated October
1, 1994, in which she alleged that she was discriminated against on
the bases of race (Mexican-American), color (brown), national origin
(Hispanic/Latin), sex (female), and disability (unspecified) when,
on September 18, 1993, her supervisor demanded that she move to an
extremely noisy area, ignoring her plea that she was very sensitive to
noise and had a doctor's note to that effect. Complainant also alleged
other incidents of harassing behavior, but did not provide any specific
information regarding these incidents.
The agency accepted the complaint for investigation. During the
investigation, complainant submitted an affidavit elaborating on her
allegations of harassment. Specifically, complainant's affidavit stated
that management refused to acknowledge her work-related health problems
and to provide her with reasonable accommodations; that her medical
condition has been exacerbated by the alleged harassment and retaliation;
that after her doctor allowed her to return to work on September 18,
1993 on limited duty, the incident alleged in the complaint occurred
and that the supervisor ordered her to work in an area in disregard
of her doctor's letter requiring her to do light/limited duty work
because of her physical and mental limitation; that the harassment and
yelling continued the following day when she returned to work; that her
pleas for help were disregarded by agency officials; and that she has
not been able to return to work since the incident in September 1993.
At the conclusion of the investigation, complainant was informed of
her rights to elect a hearing before an EEOC AJ or an immediate final
decision from the agency. Complainant elected the former.
The AJ remanded the complaint to the agency upon concluding that the
investigation was limited to the incident that occurred on September 18,
1993, whereas the complainant's affidavit suggested that there were
additional allegations including a continuing pattern of harassment
and a denial of reasonable accommodation. The AJ ordered the agency to
determine whether those additional allegations were viable, and if so,
to investigate them and give complainant another opportunity to request
a hearing. The AJ's order also provided that if the agency determined
that those allegations were not viable, the agency should dismiss the
complaint because the September 18, 1993 incident alone may not rise
to the level of an unlawful employment practice. The agency determined
that the additional allegations were not viable, and therefore dismissed
the complaint.
Complainant appealed the agency's dismissal to this Commission.
On appeal, we ruled that the incident of September 18, 1993 did rise
to the level of an unlawful employment practice because that incident
constituted an allegation of harassment and a denial of reasonable
accommodation which resulted in complainant's constructive discharge.
Po v. United States Postal Service, EEOC Appeal No. 01963550 (December
30, 1996). We also ruled that the agency failed to give complainant an
opportunity to provide specific information regarding the additional
allegations (incidents not occurring on September 18, 1993). Id.
Based on our rulings, we remanded the case back to the agency. In our
remand, we made clear that complainant was entitled to an investigation
regarding the incidents that occurred on September 18, 1993. We also made
clear that the agency should give complainant an opportunity to provide
specific information regarding the additional allegations (incidents not
occurring on September 18, 1993) before determining whether to accept
or reject these allegations for an investigation. Id.
Pursuant to the order contained in our remand, the agency requested
clarification or additional information in writing from complainant
regarding the additional allegations. Complainant was given fifteen
calendar days to provide this information. When complainant did
not provide the information within the fifteen-day time period, the
agency dismissed the additional allegations pursuant to 29 C.F.R. �
1614.107(g).<1>
After the dismissal of complainant's additional allegations, the
agency forwarded the investigative file to the AJ for disposition of the
remaining portion (i.e., the September 18, 1993 incident) of complainant's
EEO complaint. During the period in which the AJ was preparing the case
for hearing, she requested that complainant provide a witness list within
fifteen days of August 14, 2000. The AJ informed complainant that failure
to comply with her request would lead to dismissal of complainant's case.
When complainant failed to provide the requested information in a timely
manner, the AJ dismissed the case. The agency's final action adopted
the AJ's dismissal. Complainant appealed.
ANALYSIS AND FINDINGS
Administrative judges may dismiss complaints pursuant to 29 C.F.R. �
1614.107, on their own initiative, after notice to the parties, or upon
an agency's motion to dismiss a complaint. 29 C.F.R. � 1614.109(b).
In this case, the AJ dismissed the complaint pursuant to � 1614.107(a)(7)
which states, in pertinent part, that where the agency has provided
the complainant with a written request to provide relevant information,
and the complainant has failed to respond to that request within fifteen
days of its receipt, the agency may dismiss the complaint, provided that
the request included a notice of proposed dismissal (emphasis added).
We note, however, that 29 C.F.R. � 1614.107(a)(7) is only available to
an AJ as a sanction when the complainant fails to comply with an agency
request for relevant information. Hale v. Department of Justice, EEOC
Appeal No. 01A03341 (December 8, 2000). Here, complainant failed to
comply with an AJ's request for relevant information. In such cases,
administrative judges should avail themselves of the sanction provisions
contained within 29 C.F.R. �1614.109(f)(3); EEOC Management Directive
110, Chapter 7, pp. 9-10 (1999). Such sanctions may include an adverse
inference that the requested information would have reflected unfavorably
on the party refusing to provide the requested information, exclusion of
other evidence offered by the party refusing to provide the requested
information, or issuance of a decision fully or partially in favor of
the opposing party. Id. But these sanctions must be tailored in each
case to appropriately address the underlying conduct of the party being
sanctioned. A sanction may be used to both deter the non-complying party
from similar conduct in the future, as well as to equitably remedy the
opposing party. If a lesser sanction would suffice to deter the conduct
and to equitably remedy the opposing party, an AJ may be abusing his or
her discretion to impose a harsher sanction. 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 Thomas v. Department of Transportation, EEOC Appeal
No. 01870232 (March 4, 1988).<2>
In this case, complainant's case was dismissed because complainant
failed to comply with the AJ's order to provide a witness list. While
complainant's failure to comply was not warranted, we hold that, because
there was no contumacious conduct on the part of complainant, dismissing
the complaint in its entirety was too harsh. That is especially true
in this case because complainants are not required by our regulations
to have witnesses testify on their behalf in administrative hearings.
CONCLUSION
Based on the foregoing, after a careful review of the record, including
complainant's arguments on appeal, the agency's response thereto, and
arguments and evidence not specifically discussed in this decision,
we hereby VACATE the agency's final action adopting the AJ's dismissal,
and REMAND the case to the AJ for a hearing.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC
field office the request for a hearing within fifteen (15) calendar
days of the date this decision becomes final. The agency is directed
to submit a copy of the complaint file to the EEOC Hearings Unit 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 request and complaint file have
been transmitted to the Hearings Unit. Thereafter, the Administrative
Judge shall issue a decision on the complaint in accordance with the
regulation set forth at 29 C.F.R. � 1614.109
and the agency shall issue a final action in accordance with the
regulation set forth at 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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, 2001
__________________
Date
1There is no evidence in the record indicating that complainant appealed
the agency's dismissal to this Commission. There are, however, documents
indicating that complainant objected to the dismissal by contacting the
agency in writing. Because complainant did not take advantage of the
proper channel of challenging an agency decision, the agency's dismissal
regarding her additional allegations will not be addressed herein.
We note that the agency's dismissal informed complainant of the proper
channel by which to challenge an agency decision.
2Even in cases where circumstances are such that an AJ can avail himself
or herself of 29 C.F.R. � 1614.107(a)(7) (i.e., complainant failed to
comply with an agency request for relevant information), we note that
dismissal is not appropriate when sufficient information is available
to allow the complaint to be adjudicated.