01A14457_r
04-30-2002
James H. Wilson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James H. Wilson v. United States Postal Service
01A14457
April 30, 2002
.
James H. Wilson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14457
Agency No. 4G-752-0255-97
DECISION
Complainant appeals the agency's May 31, 2001 decision dismissing
complainant's complaint. Complainant alleges that he was discriminated
against on the basis of reprisal when, on February 7, 1997, he was
denied advance annual leave. After conducting an investigation,
complainant requested a hearing before an Administrative Judge (AJ).
The AJ remanded the case to the agency upon finding that complainant
failed to demonstrate that he was an aggrieved employee, resulting in an
agency decision dated March 29, 1999, dismissing complainant's complaint
for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
Complainant appealed that decision to the Commission. The Commission
issued a decision on October 27, 2000, reversing the dismissal and
remanding the complaint for further processing. Wilson v. United States
Postal Serv., EEOC Appeal No. 01994076 (Oct. 27, 2000). The Commission
found that the complaint stated a claim and that the record did not show
that the complaint was moot. Id.
The AJ dismissed complainant's complaint for failure to respond to an
Order to Show Cause. On May 31, 2001, the agency issued a decision
adopting the AJ's decision and dismissing the complaint pursuant to
29 C.F.R. � 1614.107(a)(7), for failure to cooperate. Complainant now
appeals from the May 31, 2001 agency dismissal.
According the Order to Show Cause dated December 28, 2000, the AJ desired
more information to determine whether summary judgment was appropriate in
the case. The AJ, in the Order, requested that the agency and complainant
respond to the Order if either party found five listed facts to be
in dispute. Further, the AJ requested that complainant, inter alia,
�provide all information that he has in support of his allegation of
discrimination.� The AJ requested the agency, inter alia, to �provide
all of the information that it has regarding the date on which it first
received the Complainant's request for advance leave.� According to
the AJ's dismissal, �[n]either party responded� causing a �lack [of]
sufficient information to issue a summary decision.� Therefore, the
AJ dismissed the complaint pursuant to 29 C.F.R. � 1614.109(f)(3)(v)
for �for failure to comply with an order of the Administrative Judge.�
The Commission finds that the Order to Show Cause did not notify the
parties that failure to respond to the Order within 15 days may lead
to dismissal. Therefore, we find in the instant circumstances, that it
was complainant's strategic choice as to whether to submit �information
that he has in support of his allegation of discrimination.� The
Commission finds that dismissal under � 1614.107(a)(7) by the agency
was improper. Furthermore, we find that dismissal as a sanction by
the AJ was clearly inappropriate because complainant has not engaged
in any activity different than that of the agency. According to the
AJ's dismissal, �[n]either party responded.� Thus, it is not logical
to take an adverse inference against only complainant. Additionally,
we do not find complainant's conduct improper. Therefore, the matter
shall be remanded for a hearing.
The agency's decision dismissing complainant's complaint is REVERSED
and we REMAND the complaint to the agency for further processing in
accordance with this decision and applicable regulations.
ORDER
The agency shall request the Hearings Unit of the appropriate EEOC
district/field office to schedule a hearing. The agency is directed to
submit a copy of the complaint file 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 file has been transmitted to
the Hearings Unit. Thereafter, the Administrative Judge shall issue a
decision on the complaint in accordance with 29 C.F.R. � 1614.109, and the
agency shall issue a final action in accordance with 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
April 30, 2002
__________________
Date