Carolyn Mowan-Horton, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 18, 2002
01A23413_r (E.E.O.C. Sep. 18, 2002)

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