Russell A. Cavanaugh, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 4, 2002
01A05481 (E.E.O.C. Sep. 4, 2002)

01A05481

09-04-2002

Russell A. Cavanaugh, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Russell A. Cavanaugh v. United States Postal Service,

01A05481

September 4, 2002

.

Russell A. Cavanaugh,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A05481

Agency No. 4H-350-0286-99

DECISION

The complainant filed a timely appeal with this Commission from the

agency's final decision (FAD) dated July 19, 2000, concerning his

complaint of unlawful employment discrimination in violation of Section

501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,

29 U.S.C. � 791 et seq.

At the conclusion of the investigation, the complainant requested a

hearing before an EEOC Administrative Judge (AJ). On January 25, 2000,

the AJ issued a Discovery Authorization Order which included a notice

indicating that he may issue a decision without holding a hearing.

On May 2, 2000, the AJ returned the complaint file to the agency for a

final decision without a hearing based on complainant's noncompliance

of the AJ's notice citing 29 C.F.R. � 1614.109(d)(3)(v). The AJ noted

that there was sufficient information within the record to issue a

final decision on the merits. The agency issued its FAD on the merits

of the complaint concluding that complainant had not established his

claim of discrimination.

The AJ's authority to issue sanctions is set forth at 29 C.F.R. �

1614.109(f)(3). Additional guidance can be found in EEOC Management

Directive 110 at 7-9 and Rules 11 and 37 of the Federal Rules of Civil

Procedure. In appropriate circumstances, an AJ may sanction a party

for its conduct. Sanctions should be tailored to deter the party from

similar conduct in the future and, if warranted, to equitably remedy

any harm incurred by the opposing party. Sanctions should not be so

severe that they result in inequity, nor should they be so lenient that

they fail to serve as a deterrent. If a lesser sanction would suffice

to deter the conduct and to equitably remedy the opposing party, it

may constitute an abuse of discretion to impose a harsher sanction.

See Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December

8, 2000). An AJ must distinguish between conduct that does not warrant

the imposition of a sanction and conduct which does. The Commission has

stated that a complainant's failure to respond to a notice of the AJ's

intent to issue a decision without a hearing is not the type of conduct

which an AJ should sanction. Id.

The AJ's letter returning the complaint file to the agency explicitly

relied on the complainant's failure to comply with the issuance of a

decision without hearing. As noted above, this is not the type of conduct

which an AJ should sanction. Thus, we find that the AJ's sanction was

not appropriate.

CONCLUSION

Accordingly, the agency's final decision is VACATED, 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 within fifteen (15) calendar days of the date this decision

becomes final a request for an EEOC AJ to process the remanded complaint

4H-350-0286-99. With this request the agency shall submit a copy of

the complaint file, including administrative and investigatory files,

all correspondence to and from the AJ by the parties, and this decision.

Thereafter, the AJ shall issue a decision in accordance with 29 C.F.R. �

1614.109,<1> and the agency shall issue a final action in accordance with

29 C.F.R. � 1614.110 within forty (40) days of receipt of the AJ decision.

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 4, 2002

__________________

Date

1The AJ will apply this regulation to decide whether a hearing is

appropriate.