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.