01A25068_r
05-02-2003
Rosario Espinoza, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rosario Espinoza v. United States Postal Service
01A25068
May 2, 2003
.
Rosario Espinoza,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A25068
Agency No. 1G-753-0102-99
Hearing No. 310-A0-5458X
DECISION
On August 19, 1999, complainant filed a formal EEO complaint wherein she
claimed that she had been discriminated against on the bases of her race
(Caucasian) and national origin (Mexican-American) when on April 13,
1999, she was sent home after reporting to work for overtime.
The agency accepted the complaint for investigation. Subsequent to
the investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). A pre-hearing conference was scheduled for
February 25, 2002, but complainant failed to appear at the pre-hearing
conference. On February 25, 2002, the agency requested that the AJ
dismiss the complaint because complainant had not corresponded with
the agency representative or provided the agency representative with
any information. On May 8, 2002, the AJ issued an Order of Dismissal
dismissing the instant complaint on the grounds of failure to cooperate.
The AJ noted that complainant failed to be present at the pre-hearing
conference and that complainant did not request a continuance of
the pre-hearing conference. The AJ further noted that the agency
representative stated that complainant failed to correspond with her or
to provide her with any information.
In its final action dated August 19, 2002, the agency dismissed the
complaint pursuant to 29 C.F.R. �1614.107(a)(7), on the grounds that
complainant failed to cooperate. The agency reiterated the specific
examples of non-cooperation set forth in the AJ's Order of Dismissal. The
agency determined that there is insufficient information in the record
to properly adjudicate the complaint. Thereafter, complainant filed
the instant appeal.
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides for the dismissal
of 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 complainant's response does
not address the agency's request, provided that the request included a
notice of the proposed dismissal. The regulation further provides that,
instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
Under the circumstances in this case, we find that the agency's dismissal
of the complaint was improper. There is no indication that complainant
was provided with a written request to provide any relevant information
and informed of the 15-day time limit for submitting such information.
Therefore, dismissal under � 1614.107(a)(7) is improper.
The AJ's dismissal, however, is tantamount to a dismissal of the complaint
as a sanction for failure to appear at the pre-hearing conference.
See 29 C.F.R. � 1614.109(f)(3). Complainant has not shown that she
appeared at the pre-hearing conference or that there was good cause for
not attending the pre-hearing conference. Nevertheless, we find under
the instant circumstances that dismissal of the entire complaint is too
severe a sanction for the conduct at issue. A more appropriate sanction
is the forfeiture of complainant's right to a hearing. Therefore, we
shall remand the matter so that the agency may issue a decision on the
merits of the complaint without a hearing being held. Finally, we find
that sufficient information was provided by complainant and obtained
during the investigation to allow for an adjudication of the complaint.
We find that the agency's dismissal of complainant's complaint for
failure to cooperate was improper and is REVERSED. The complaint is
hereby REMANDED for further processing in accordance with the Order below.
ORDER
The agency is ordered to issue a final action pursuant to 29 C.F.R. �
1614.110 on the merits of complainant's complaint based on the evidence
already present in the record. This decision must be issued within sixty
(60) calendar days of the date this decision becomes final. A copy of the
final action 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
May 2, 2003
__________________
Date