01A05420_r
04-10-2002
John L. Wright, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John L. Wright v. United States Postal Service
01A05420
April 10, 2002
.
John L. Wright,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05420
Agency No. 4C-164-0021-99
Hearing No. 170-AO-8056X
DECISION
Complainant timely initiated an appeal from the agency final action
dismissing his complaint. The appeal is accepted pursuant to 29 C.F.R. �
1614.405.
Complaint filed a formal EEO complaint on April 7, 1999, alleging
that the agency had discriminated against him on the bases of sex
and race in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq. At the conclusion of
the investigation, complainant was provided a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge (AJ).
Thereafter, complainant was ordered to explain why the complaint should
not be dismissed due to his failure to comply with the AJ's Scheduling
Order when complainant failed to be available for a telephonic Pre-hearing
Conference.
The AJ's April 17, 2000 Order to Show Cause stated that in responding
later the same day to the voice mail message left by the AJ on the date
scheduled for the pre-hearing conference (April 3, 2000), complainant
�indicated that he never received [the] scheduling order indicating the
teleconference was scheduled for April 3 at 10:00 a.m.� Complainant's
written response to the AJ's Order to Show Cause, dated April 20, 2000,
stated that he was ill and sought medical treatment at the time of the
hearing, and provided documentation to that effect. In dismissing
the complainant pursuant to 29 C.F.R. � 1614.109(b) and 29 C.F.R. �
1614.109(f)(3), the AJ found the complainant's two responses were
insufficient and conflicting. The agency's final action implemented
the AJ's decision.
An AJ has the authority to sanction a party for failure without good cause
shown to fully comply with an order. However, 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. See Hale v. Department of Justice, EEOC Appeal No. 01A03341
(December 12, 2000).
Complainant's April 20, 2000 response to the AJ's Order to Show Cause
indicates he had taken prescription medications and suffered from a
lack of sleep on April 3, 2000. The record does not disclose precisely
what complainant's earlier voice mail message to the AJ contained or
when he left the message, but a fair reading of the record reflects that
complainant earlier indicated that he did not receive a scheduling order.
We find the disparity between complainant's April 3, 2000 voice mail
response and his April 20, 2000 written response to the AJ's Order to Show
Cause does not rise to the level of contumacious conduct. Accordingly,
we find that a lesser sanction would have been appropriate, and that the
AJ improperly sanctioned complainant by dismissing the complaint. See
Clark v. United States Postal Service, EEOC Appeal No. 01945228 (February
22, 1996).
Accordingly, the agency's final action is REVERSED, and this complaint
is REMANDED to the agency for further processing in accordance with this
decision and the order below.
ORDER
Within sixty (60) calendar days from the date that this decision
becomes final, the agency shall take final action in accordance with 29
C.F.R. �1614.110(b). A copy of the final agency decision must be sent
to the Compliance Officer referenced herein.
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 10, 2002
__________________
Date