Banita T. Fricks, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 29, 2001
01A10042 (E.E.O.C. Jun. 29, 2001)

01A10042

06-29-2001

Banita T. Fricks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Banita T. Fricks v. U.S. Postal Service

01A10042

June 29, 2001

.

Banita T. Fricks,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A10042

Agency No. 4-J-600-0091-99

Hearing No. 210-99-6592X

DECISION

Complainant filed a timely appeal with this Commission from an agency

final action dated July 6, 2000, dismissing her complaint of unlawful

employment discrimination brought under Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq. The Commission

accepts the appeal in accordance with 29 C.F.R. � 1614.405.

In her complaint, complainant alleged discrimination on the basis

of race regarding her December 16, 1998 termination from the agency.

After the agency accepted and investigated the complaint, complainant

requested a hearing before an EEOC Administrative Judge (AJ).

By Order dated November 4, 1999, in pertinent part, the AJ informed

the parties of the February 2, 2000 hearing date. When complainant

failed to appear for the scheduled hearing, the AJ issued another

Order, dated February 2, 2000, which sanctioned complainant by both

canceling the hearing and dismissing the complaint, with instructions

to the agency to issue a final action. In the February 2, 2000 Order,

the AJ additionally noted that the November 4, 1999 scheduling Order

informed the parties that failure to appear at the hearing would be

treated as a failure to prosecute or proceed without delay, and subject

the complaint to dismissal. The AJ also noted that complainant failed

to make any contact or to request that the hearing be postponed, thereby

demonstrating �disinterest� in pursuing her claim, while the agency and

court reporter appeared at the proper time and were prepared to proceed.

The agency dismissed the instant complaint on the grounds of failure to

prosecute, as a sanction under 29 C.F.R. � 1614.109, in full concurrence

with the reasoning set forth in the February 2, 2000 Order. Complainant

now appeals this determination.

EEOC Regulation 29 C.F.R. �1614.109(f)(3), along with EEOC Management

Directive 110 Chapter 7, pp.9-10, authorize the Commission's

Administrative Judges to sanction either party for failure to fully

and timely respond to orders issued during the hearing process, without

good cause shown. 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. However, these sanctions must be tailored 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. Hale v. Department of

Justice, EEOC Appeal No. 01A03341 (December 8, 2000).

In this case, complainant failed to contact the AJ, or the other parties,

to advise them of her inability to appear for the hearing, causing expense

and inconvenience to all concerned. Moreover, complainant thereafter

failed to provide any explanation to justify her non-appearance at

the scheduled hearing. On the other hand, the record reveals no

evidence that complainant's failings were due to anything other than

simple negligence, with the AJ's Order merely admonishing complainant

for her �disinterest.� Therefore, while we find that the AJ properly

sanctioned complainant by canceling the hearing, we also find that the

AJ's dismissal of the complaint as a sanction under these circumstances

was improper. See Hale, supra.

Accordingly, the agency's final action is hereby REVERSED. The complaint

is REMANDED for agency action in accordance with the Order below.

ORDER

The agency is ordered to render a decision on the merits of the remanded

complaint. The agency shall issue this final action to complainant within

thirty (30) calendar days of the date this decision becomes final.

A copy of the agency's 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 (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 29, 2001

__________________

Date