Anselmo B. Gutierrez, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 17, 2002
01A22915_r (E.E.O.C. Sep. 17, 2002)

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