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