0120121504
06-13-2012
Anita Y. Bell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Anita Y. Bell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120121504
Hearing No. 451-2012-00009X
Agency No. 4G-780-0096-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's February 29, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Manager, Customer Services, EAS-20, at the Agency's Highlander Station in Waco, Texas.
On June 13, 2011, Complainant filed a formal EEO complaint claiming that the Agency discriminated against her on the bases of race/national origin (African-American), sex (female), religion (Baptist), color (Black), disability (knee, ankle, wrist, back, head and hand), age (over 40), and in reprisal for prior EEO activity when:
1. her leave request for February 8, 2011, was denied; and
2. on April 13, 2011, she was put on Emergency Placement in an Off-Duty Status through April 26, 2011.
After the investigation of her formal complaint, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing.
By an order dated February 7, 2012, the AJ cancelled the hearing as a sanction against Complainant on the grounds that she failed to show good cause for not timely completing and returning the Designation of Representative form; certifying that she had read the Frequently Asked Questions (FAQs) and Supplemental Acknowledgment and Order (A&O); or submitting a request for witnesses.
The AJ remanded the complaint file to the Agency, and the Agency issued the instant final decision pursuant to 29 C.F.R. � 1614.110(b).
In its February 29, 2012 final decision, the Agency found no discrimination. The Agency found that Complainant did not establish a prima facie case of race, national origin, sex, religion, color, disability, age and reprisal discrimination. The Agency nevertheless found that Agency management articulated legitimate, nondiscriminatory reasons for its actions which Complainant failed to show were a pretext.
On February 14, 2012, prior to the Agency's issuance of its final decision, Complainant, through her attorney, filed an appeal with the Commission, requesting reversal of the AJ's sanction as an abuse of discretion.
On appeal, Complainant asserted that the AJ improperly sent her formal complaint to the Agency for an immediate decision as a sanction for the actions of her initial representative. Complainant states that during the relevant time, her "then-representative, albeit tardy, did submit a Designation of Representation form along with a pre-hearing list of requested witnesses - plus an explanation that the representative had undergone a triple coronary artery bypass, providing a related medical record." Complainant further argues that she met her obligation to ensure her complaint was pursued when she replaced her initial representative with her current attorney. Complainant states that "while her former representative's compliance left something to be desired, it did not reflect willful disregard nor did it prejudice the agency's ability to defend itself." Complainant further argues that she should be provided an opportunity to present a response to the Agency's motion for a summary judgment. Complainant also submitted arguments concerning the merits of her case in response to the Agency's final decision.
ANALYSIS AND FINDINGS
As a preliminary matter, the Commission determines that Complainant's February 14, 2012 "appeal" was interlocutory and generally would not be considered. However, given the fact that the Agency has since rendered a final decision on February 29, 2012, and that Complainant filed an appeal from that decision, we determine that the arguments raised in the February 14, 2012 interlocutory appeal are now ripe for consideration.
The AJ's authority to issue sanctions is set forth at 29 C.F.R. � 1614.109(f)(3). Additional guidance can be found in EEO MD-110, 7-9 and Rules 11 and 37 of the Federal Rules of civil Procedure. In appropriate circumstances, an AJ may sanction a party for its conduct. Sanctions should be tailored to deter the party from similar future conduct and, if warranted, to equitably remedy any harm incurred by the opposing party. Sanctions should not be so severe that they result in inequity, nor should they be so lenient that they fail to serve as a deterrent, if a lesser sanction would suffice to deter the conduct and to remedy equitably the opposing party, it may constitute an abuse of discretion to impose a harsh sanction. See Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). AJs must distinguish between conduct that does not warrant the imposition of a sanction, and conduct which does.
We have considered the record in the instant case. We determine given the totality of circumstances, including but not limited to the health condition of Complainant's representative during the period where the AJ's actions were taken and the potential factor that this condition played in the quality and manner of the representative's response, that this is not the type of conduct which warrants sanction. We note that Complainant has secured a new representative and there is no evidence that the Agency has been prejudiced by the events at issue
Accordingly, the Agency's final decision finding no discrimination is VACATED and the complaint is REMANDED to the Agency for further processing pursuant to the Order below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC's San Antonio Field Office a request for a hearing in this case, as well as the complaint file, within thirty (30) 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 of the San Antonio Field Office. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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 13, 2012
__________________
Date
2
0120121504
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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