01A03754
03-28-2001
Nina L. Zhang, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Nina L. Zhang v. United States Postal Service
01A03754
March 28, 2001
.
Nina L. Zhang,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A03754
Agency No. 1K-221-0050-98
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated March 22, 2000, dismissing her complaint 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 complaint, complainant alleged
that she was subjected to discrimination on the bases of race (Asian),
sex (female), national origin (Chinese), disability (carpal tunnel),
and in reprisal for prior EEO activity when:
On January 11, 1998, complainant's supervisor harassed her when she was
told to report to Operation 060 (manual flat distribution), but then the
supervisor changed her mind and told complainant to key on the Flat Sorter
Machine and to key good numbers, then about 30 minutes later complainant
was told to move to Operation 044 (manual letter distribution).
The agency accepted complainant's complaint for investigation and
upon completion of the investigation, complainant was informed of her
right to request a hearing before an EEOC Administrative Judge (AJ) or
alternatively to receive a final decision by the agency. Complainant
requested a hearing before an AJ.
On January 25, 1999, the AJ issued an �Acknowledgment Order and Order
Regarding Discovery and Summary Judgment.� The Order stated in pertinent
part:
IT IS HEREBY ORDERED that the parties follow the procedures set forth in
this Order. Failure to comply with this Order may result in sanctions,
including dismissal or a decision in favor of the opposing party.
The Order also contained a Notice Regarding Summary Judgment which stated:
After a review of the record, I have determined that matters in this
complaint may not be in material dispute and I am considering issuing
findings and conclusions without holding a hearing (summary judgment).
The Order elsewhere provided:
I hereby ORDER the parties to respond to this Notice within 15 days of the
close of discovery. After reviewing the parties' responses and examining
the record, I will determine whether summary judgment is appropriate.
The absence of a response from a party will not necessarily preclude me
from issuing a summary judgment decision in that party's favor.
The record shows that complainant contacted the AJ on December 3, 1999,
to inquire about the status of her case. In response to complainant's
request, the AJ sent complainant a letter dated January 18, 2000, which
noted that neither party had responded to the January 25, 1999 Notice
Regarding Summary Judgment and the AJ stated that a decision regarding
summary judgment would be forthcoming within three months.
By recommended decision issued February 14, 2000, the AJ dismissed
complainant's complaint for failure to prosecute. The AJ noted that
neither complainant nor the agency responded to the Notice Regarding
Summary Judgment and stated that because complainant failed to respond to
the Notice, her complaint would be dismissed for failure to cooperate.
The agency issued a final decision on March 22, 2000, implementing the
AJ's Recommended Decision dismissing complainant's complaint for failure
to cooperate.
Upon review of the record, we find that the AJ improperly recommended
dismissal for failure to cooperate. First, the Acknowledgment Order and
Order Regarding Discovery and Summary Judgment does not make clear that a
complainant must file an opposition brief to the AJ's proposed issuance of
summary judgment. Indeed, the Order indicates that absence of a response
will not necessarily preclude a summary judgment decision in favor of the
non-responding party. Nevertheless, even assuming that the Acknowledgment
Order had expressly advised complainant that he was required to file
an opposition brief thereto, the proper consequence of the failure to
file a summary judgment opposition brief is not dismissal for failure
to cooperate but rather adjudication on the merits without a hearing.
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), 7-15 (November 9, 1999) provides in pertinent part:
if the Administrative Judge determines that some or all of the material
facts are not in genuine dispute, s/he may, after giving notice to the
parties and providing them an opportunity to respond within 15 days of
receipt of the notice, issue an order limiting the scope of the hearing
or issue a decision without conducting a hearing.
Although this provision addresses a notice of intent to issue a decision
without a hearing, as opposed to an order requiring the parties to file
summary judgment submissions, it nonetheless makes clear that where a
party fails to oppose issuance of a decision without a hearing, the AJ may
proceed to issue such a decision on the merits, based on the information
contained in the record to date. Accordingly, absent other circumstances
warranting dismissal for failure to cooperate, complainant's failure to
file a summary judgment opposition brief did not warrant dismissal of
the present case, but rather issuance of a decision without a hearing.
Accordingly, the agency's decision to dismiss complainant's complaint
was improper and is REVERSED and the complaint is REMANDED for further
processing in accordance with the Order below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC field
office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (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 request and complaint file have been transmitted
to the Hearings Unit. Thereafter, the Administrative Judge shall issue
a decision on the complaint in accordance with the regulation set forth
at 29 C.F.R. � 1614.109 and the agency shall issue a final action in
accordance with the regulation set forth at 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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)(Supp. V 1993). 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 (M0900)
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, Acting Director
Office of Federal Operations
March 28, 2001
__________________
Date