01997241
03-04-2002
Digna M. Carmouze, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southeast Area), Agency.
Digna M. Carmouze v. United States Postal Service (Southeast Area)
01997241
March 4, 2002
.
Digna M. Carmouze,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 01997241
Agency Nos. 4-H-330-1435-96 and 4-H-330-1534-96
DECISION
Digna M. Carmouze (�complainant�) filed two separate complaints of
unlawful employment discrimination against her employer, the United
States Postal Service (�the agency�). The first complaint, docketed by
the agency as Discrimination Complaint No. 4-H-330-1435-96 (�Complaint
#1�), was filed on or around May 20, 1996. It alleged that the agency
had discriminated against her on the basis of her sex (female) when
her supervisor called her at home and told her not to show up for work
until further notice, and further alleged that her supervisor had been
sexually harassing her for some time. The second complaint, docketed by
the agency as Discrimination Complaint No. 4-H-330-1534-96 (�Complaint
#2�), was filed on or around June 12, 1996. This complaint claimed that
the agency had discriminated against her on the bases of her sex (female),
national origin (Cuban), and retaliation (presumably for filing Complaint
#1), when on April 20, 1996, the agency issued her a notice of removal.
Complainant was thus alleging that the agency had violated Title VII
of the Civil Rights Act of 1964 (�Title VII�), as amended, 42 U.S.C. �
2000e et seq. The agency accepted Complaint #1 for investigation on
or around July 24, 1996. It appears to have accepted Complaint #2 for
investigation, as well, but there is no specific evidence in the record
indicating the date of such acceptance. There is a series of internal
agency letters in the record indicating that the agency decided to combine
both complaints and assign them a single case number and to a single
investigator. It appears, however, that this investigator only issued
an investigative report for Complaint #1. As the investigator noted in
this report, Complaint #2 �is in the process of being closed/dismissed
for failure to pursue. Complainant and representative failed to respond
to attempts made to obtain her affidavit.� Report of Investigation
(Aug. 19, 1999), at 4.
Indeed, on September 8, 1999, the agency did issue a final decision
(�FAD�) solely on Complaint #2. This FAD noted that:
On May 16, 1999, an affidavit was mailed via certified mail to you for
completion concerning your complaint. Records indicate you received
the request on May 26, 1999, and you did not respond to the request.
On June 23, 1999, a second request was mailed to you, which you received
on June 24, 1999. Again, you have failed to respond to the request for
information pertaining to your complaint.
You have failed to cooperate with the agency by not providing the
requested information in the prosecution of your complaint despite the
agency's notice that failure to comply with the repeated requests would
result in the dismissal of your complaint.
Since you have failed to properly respond to the agency's request,
your complaint is dismissed . . . .
FAD (Sept. 8, 1999), at 2.
Complainant filed a timely notice challenging this FAD which we, the
United States Equal Employment Opportunity Commission (�EEOC� or �the
Commission�), docketed as this appeal. Complainant's appeal notice
references only Complaint #2. It does not purport to appeal any decision
related to Complaint #1. In fact, it appears from the record before us
that no final decision with respect to Complaint #1 itself was ever issued
(i.e., the completion of the investigation of Complaint #1 appears to be
the last agency action taken on this particular complaint). The agency
may have intended its FAD to dispense with the issues presented by both
Complaint #2 as well as Complaint #1 (and thus concluded that there was
no need to issue a FAD on Complaint #1 itself � after all, the agency
apparently did decide to combine these two complaints and investigate them
together). However, there is no evidence in the record verifying that the
agency Discrimination Complaint No. 4-H-330-1534-96 for Complaint #2 was
ever officially assigned as the number for both complaints. Moreover,
the investigator himself seemed to indicate that the processing of the
two was still bifurcated (when he noted in his report that Complaint #2
would be dismissed, but issued a report of investigation on Complaint
#1 anyway).
Amidst this confusion, we turn to the question of whether the FAD
addressing Complaint #2 should be upheld. We find that it should not.
It is true that agencies may, in limited circumstances, dismiss a
complaint of discrimination when the complainant refuses to prosecute
the claims the complaint contains. Under 29 C.F.R. � 1614.107(a)(7),
a complaint may be dismissed if �the agency has provided the complainant
with a written request to provide relevant information or otherwise
proceed with the complaint, and the complainant has failed to respond to
the request within 15 days of its receipt or the complainant's response
does not address the agency's request, provided that the request included
a notice of the proposed dismissal.� 29 C.F.R. � 1614.107(a)(7); see
also Spencer v. Department of Health and Human Services, EEOC Appeal
No. 01994138 (Jan. 30, 2002). We will assume, for argument's sake, that
these requirements were met here (since the FAD in question appears to
indicate that they were).
Nevertheless, even when the specific standards of 29 C.F.R. �
1614.107(a)(7) have been satisfied, EEOC still has been quite reluctant
to uphold dismissals under this rule. As a result, we have limited
the application of 29 C.F.R. � 1614.107(a)(7) to cases where there is a
clear record of delay or �contumacious conduct� by the complainant. See,
e.g., Battle v. Department of Energy, EEOC Appeal No. 01A03905 (Feb. 14,
2002); Hill v. Department of Treasury, EEOC Appeal No. 01991506 (Feb. 8,
2002); Card v. United States Postal Service, EEOC Request No. 05970095
(Apr. 23, 1998); Anderson v. United States Postal Service, EEOC Request
No. 05940850 (Feb. 24, 1995); and Kroeten v. United States Postal Service,
EEOC Request No. 05940451 (Dec. 22, 1994).
In this case, complainant (perhaps unjustifiably) appears to have
failed to respond to agency requests for information. Yet the agency
has presented no evidence demonstrating how complainant's conduct
in this regard was contumacious. Black's Law Dictionary has defined
�contumacious conduct� generally as �wilfully stubborn and disobedient
conduct . . . .� Black's Law Dictionary (6th ed. 1990); cf. Random
House Webster's Unabridged Dictionary (2nd ed. 1999) (defining
�contumacious� as �stubbornly perverse or rebellious; willfully and
obstinately disobedient�); and The American Heritage Dictionary of the
English Language (4th ed. 2000) (defining �contumacious� as �obstinately
disobedient or rebellious; insubordinate�). We see no reason to depart
from such a clear and concise interpretation of this critical phrase.
See Koch v. U.S. Securities and Exchange Commission, EEOC Appeal
No. 01A04600 et al. (Dec. 21, 2001). And, from our reading of the
(admittedly sparse) record before us, we certainly cannot conclude that
complainant has displayed this sort of defiant disobedience that alone
can legitimize the use of the ultimate sanction of dismissal. See,
e.g., St. John-Metoyer v. United States Postal Service (Southwest),
EEOC Appeal No. 01992504 (Dec. 3, 2001).
Accordingly, we conclude that the agency erred in dismissing Complaint
#2 for complainant's failure to cooperate, and that the FAD dismissing
Complaint #2 must be reversed. This complaint is hereby remanded to the
agency for a proper investigation in accordance with the ORDER below.<1>
ORDER
The agency is ordered to process the remanded Complaint #2 (agency
Discrimination Complaint No. 4-H-330-1534-96), in accordance with 29
C.F.R. � 1614.108. The agency shall acknowledge to complainant that
it has received the remanded complaint within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If complainant requests
a final decision without a hearing, the agency shall issue a final
decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below in
the paragraph entitled �Implementation of the Commission's Decision.�
The agency is also ordered � to the extent it has not already done
so� to issue an immediate final decision with respect to Complaint #1
(agency Discrimination Complaint No. 4-H-330-1435-96), in accordance
with 29 C.F.R. � 1614.110(b). This final agency decision shall contain a
notice of the right to appeal such final decision to the Equal Employment
Opportunity Commission, the right to file a civil action in federal
district court, the name of the proper defendant in any such lawsuit,
and the applicable time limits for appeals and lawsuits. A copy of EEOC
Form 573 must also be attached to this final decision.
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 complainant. If the
agency does not comply with the Commission's order, complainant may
petition the Commission for enforcement of the order. See 29 C.F.R. �
1614.503(a). 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, complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled �Complainant's Right
to File A Civil Action.� See 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).
If 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 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 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; EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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 complainant's complaint. However, if complainant wishes
to file a civil action, complainant has the right to file such action
in an appropriate United States District Court within ninety (90)
calendar days from the date that complainant receives this decision.
In the alternative, complainant may file a civil action after one
hundred and eighty (180) calendar days of the date complainant filed
complainant's complaint with the agency, or filed complainant's appeal
with the Commission. If complainant files a civil action, complainant
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 complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility
or department in which complainant works. Filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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 complainant's 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 entitled
�Complainant's Right to File A Civil Action.�
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 4, 2002
__________________
Date
1We remind complainant of her obligation
to comply fully with any and all orders and requests for information
made during this investigation. See, e.g., 29 C.F.R. � 1614.108(c)(1)
(providing that a complainant must produce any and all documentary and
testimonial evidenced deemed necessary by agency officials assigned to
investigate the complaint(s)). Complainant's failure to do so could
lead to the imposition of sanctions � up to and including dismissal
(albeit on different facts) � in the future. See, e.g., 29 C.F.R. �
1614.108(c)(3); cf. 29 C.F.R. � 1614.404(c).