01A23413_r
09-18-2002
Carolyn Mowan-Horton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carolyn Mowan-Horton v. United States Postal Service
01A23413
September 18, 2002
.
Carolyn Mowan-Horton,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23413
Agency Nos. 1G-754-0078-99, 4G-752-0003-00
Hearing No. 310-A0-5128X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 16, 2002, dismissing her complaints 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq. In her complaints, complainant
alleged that she was subjected to discrimination on the bases of race
and disability when:
Between February 23 and 26, 1999, complainant's supervisor harassed her
by attempting to change complainant's EAP appointment;
Complainant was sent to the nurse's office;
Complainant was required to meet in a conference for approximately two
hours after requesting a union steward;
Complainant was issued a 7-day suspension;
Management failed to assist complainant with transportation to the
nurse's office; and
On September 3, 1999, complainant was assigned tasks outside her medical
restrictions.
By order dated May 8, 2002, complainant's complaints were dismissed from
the hearing process by the Administrative Judge (AJ) for �failure to
proceed.� The agency issued a decision dated May 16, 2002, stating that
the complaints �are . . . dismissed in accordance with the order of the
[AJ].�
Neither the agency nor the AJ provided any rationale explaining,
or evidence showing, that complainant �failed to proceed.� From the
Commission's review of the record, we discern no evidence to suggest
that complainant failed to respond or otherwise comply with any notice,
order, request, or other instruction from the AJ prior to the issuance
of the Order of Dismissal dated May 8, 2002. Consequently, we find the
agency's final decision dismissing the complaints was improper.
The agency's dismissal of the complaints is REVERSED and we REMAND the
complaints to the agency for further processing as directed herein.
ORDER
The agency shall request the Hearings Unit of the appropriate EEOC
field office to schedule a hearing regarding complainant's complaints.
The agency is directed to submit a copy of the complaint files to the
EEOC Hearings Unit within 15 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
files have been transmitted to the Hearings Unit. Thereafter, the
Administrative Judge shall issue a decision on the complaints in
accordance with the regulations set forth at 29 C.F.R. � 1614.109 and
the agency shall issue a decision in accordance with the regulation set
forth at 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 18, 2002
__________________
Date