01997010_r
09-07-2001
Pamela Anderson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Pamela Anderson v. U.S. Postal Service
01997010
September 7, 2001
.
Pamela Anderson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01997010
Agency No. 4-J-480-0243-97
Hearing No. 230-98-4135X
DECISION
Complainant filed a timely appeal with this Commission from a final
agency action dated August 19, 1999, dismissing her complaint of unlawful
employment discrimination brought under Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
In her complaint, complainant claims discrimination on the basis of
disability regarding her July 30, 1997 non-selection for the position of
flat sorter operator. The agency accepted and investigated the complaint,
and complainant requested a hearing before an EEOC Administrative Judge
(AJ).
By Order dated September 15, 1998, in pertinent part, the AJ notified the
parties that a pre-hearing statement must be filed by December 8, 1998,
and that failure to do so could result in dismissal of the complaint.
During a November 9, 1998 pre-hearing conference, the AJ again reminded
the parties of the need to timely file pre-hearing statements or risk
sanctions, including dismissal of the complaint. On December 11, 1998,
the agency filed a motion to dismiss the complaint due to complainant's
failure to file a pre-hearing statement. The AJ issued an Order to
Show Cause on December 17, 1998, to both complainant and her attorney,
with a January 4, 1999 deadline to respond. Complainant's attorney
telephonically contacted the AJ on January 4, 1999 to request an
extension, but the AJ denied his request. On January 21, 1999, the AJ
issued an Order dismissing the complaint as a sanction pursuant to 29
C.F.R. �1614.109, and recommended that the agency dismiss the complaint
accordingly.
In its final action, the agency fully concurred with the AJ's action
and dismissed the complaint on the grounds of failure to prosecute.
On appeal, complainant argues that the failure to file a pre-hearing
statement or response to the Show Cause Order resulted from her attorney's
incompetence, submitting documentation suggesting that her attorney was
physically and mentally incapacitated at the time both of these filings
were due.
EEOC Regulation 29 C.F.R. �1614.109(f)(3), along with EEOC Management
Directive 110 Chapter 7, pp.9-10, authorize the Commission's
Administrative Judges to sanction either party for failure to fully
and timely respond to orders issued during the hearing process, without
good cause shown. Such sanctions may include an adverse inference that
the requested information would have reflected unfavorably on the party
refusing to provide the requested information, exclusion of other evidence
offered by the party refusing to provide the requested information, or
issuance of a decision fully or partially in favor of the opposing party.
Id. However, these sanctions must be tailored to appropriately address
the underlying conduct of the party being sanctioned. A sanction may be
used to both deter the non-complying party from similar conduct in the
future, as well as to equitably remedy the opposing party. If a lesser
sanction would suffice to deter the conduct and to equitably remedy the
opposing party, an AJ may be abusing his or her discretion to impose a
harsher sanction. 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. Hale v. Department of
Justice, EEOC Appeal No. 01A03341 (December 8, 2000).
In this case, while the AJ indicates that both complainant and her
attorney had notice of the need to timely file the pre-hearing statement
and response to the Show Cause Order, we find that it is unlikely that
complainant knew that her attorney was not addressing these matters
such that she, herself, needed to respond. Nonetheless, we find that an
attorney's incompetence or negligence does not relieve a complainant from
her obligation to timely respond during the hearing process, and we find
that the AJ properly sanctioned complainant by canceling the hearing.
However, we find that complainant's failings here clearly were not the
result of �contumacious conduct.� Therefore, we conclude that the AJ's
dismissal of the complaint as a sanction under these circumstances was
improper. See Hale, supra.
EEOC Regulation 29 C.F.R. � 1614.107(a)(7), provides that the agency shall
dismiss a complaint where 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 response does not address
the agency's request. Instead of dismissing for failure to cooperate,
the complainant may be adjudicated if sufficient information for that
purpose is available.
The Commission has previously held that only where the complainant has
engaged in delay or contumacious conduct and the record is insufficient to
permit adjudication will the Commission allow a complaint to be dismissed
for failure to prosecute. See Delgado v. United States Postal Service,
EEOC Request No. 05900859(October 25, 1990).
In its final action, the agency dismissed the complaint due to
complainant's failure to appear at the hearing. Here, we find that
the instant complaint may not be properly dismissed because there is no
evidence of intentional delay or �contumacious conduct,� and because
review of the record reveals that it contains sufficient evidence to
render an adjudication on the merits of the complaint.
Accordingly, we REVERSE the agency's dismissal of the instant complaint,
and REMAND the case for action as set forth below.
ORDER
Within sixty (60) calendar days of 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 agency's decision must be sent to the
Compliance Officer as referenced below.
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 7, 2001
__________________
Date