01A22915_r
09-17-2002
Anselmo B. Gutierrez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Anselmo B. Gutierrez v. United States Postal Service
01A22915
September 17, 2002
.
Anselmo B. Gutierrez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22915
Agency No. 4F-913-0015-97
Hearing No. 340-AO-3198X
DECISION
Complainant filed a timely appeal with this Commission from an agency's
final order dated March 27, 2002, dismissing his complaint of unlawful
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.
In his formal complaint, complainant alleged that he was subjected to
discrimination on the basis of national origin when:
Complainant's supervisor over-supervised and harassed him on an ongoing
basis. Complainant further contends that his supervisor used profanity
toward him.
The record reveals that during the relevant time period, complainant
was employed as a clerk with the agency's North Hollywood, California
Post Office. Complainant filed a formal complaint on January 14, 1997.
On May 30, 1997, complainant was informed of his right to request a
hearing before an EEOC Administrative Judge (AJ) or a final decision by
the agency. Complainant requested a hearing before an AJ on June 6, 1997.
On March 5, 2002, the AJ assigned to hear complainant's case issued a
decision dismissing complainant's complaint for failure to cooperate,
pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(7). In his decision,
the AJ stated that �complainant was asked on at least three separate
occasions by EEOC Administrative Judges to provide specific facts to
determine the substance of the claims� in his complaint, but failed to
respond to the requests. The AJ further stated that complainant was
last advised by an AJ that if he failed to respond to the request by
February 28, 2002, his complaint would be dismissed.
An AJ has the authority to sanction either party for failure without good
cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3).
The sanctions available to an AJ for failure to provide requested
relevant information 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. See Hale
v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000).
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).
In his decision, the AJ stated that dismissal of complainant's complaint
is warranted because complainant failed to respond to three requests
for information from Administrative Judges. The AJ further stated
that complainant failed to respond to an Order in which an AJ warned
complainant that if he did not respond by February 28, 2002, his complaint
would be dismissed. However, a thorough review of the record reveals
that there is no copy of the requests for information nor the Order
advising complainant to respond by February 28, 2002. Consequently, we
determine that there is insufficient evidence in the record to warrant
the dismissal of complainant's complaint.
Accordingly, the agency's decision is VACATED, and the complaint is
REMANDED to the agency for further processing in accordance with the
ORDER below.
ORDER
The agency shall request that the Hearings Unit of the EEOC's Los Angeles
District Office schedule a hearing. The agency is directed to submit a
copy of the complaint file to the EEOC District Office within 15 calendar
days of the date that this decision becomes final for a decision from an
Administrative Judge in accordance with 29 C.F.R. � 1614.109. 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 EEOC District Office. After receiving a decision from the EEOC
Administrative Judge, the agency shall issue a decision 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, 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
September 17, 2002
__________________
Date