01992504
12-03-2001
Sabrina St. John-Metoyer, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Southwest Area), Agency.
Sabrina St. John-Metoyer v. United States Postal Service (Southwest Area)
01992504
December 3, 2001
.
Sabrina St. John-Metoyer,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 01992504
Agency No. 4-G-770-0744-98
DECISION
INTRODUCTION
Sabrina St. John-Metoyer (�complainant�) filed several complaints
against the United States Postal Service (�the agency�) alleging that the
agency had discriminated against her on the bases of her race (Black),
sex (female), disability (stress-related condition), and retaliation
(for prior EEO activity), in violation of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of
the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.
The agency dismissed these complainants, claiming that complainant
had failed to cooperate in its investigation of the relevant claims.
Complainant filed a timely appeal with the United States Equal Employment
Opportunity Commission (�EEOC� or �the Commission�) requesting that
we overturn the agency's dismissal. We accepted complainant's appeal
pursuant to 29 C.F.R. � 1614.405(a). For the reasons set forth below, we
conclude that the agency's final decision (�FAD�) should be vacated, and
that the complainant's complaints should be remanded for an investigation
and/or a hearing before an EEOC administrative judge.
ISSUE PRESENTED
Whether the agency erred in dismissing the relevant complaints for
complainant's failure to cooperate in the agency's investigation of the
claims the complaints contain
BACKGROUND
In September and October of 1998, complainant filed three separate
discrimination complaints, alleging that the agency had discriminated
against her on the above-described bases when it failed to rate or
interview her for certain agency positions, and when it failed to
consider (or hire) her for jobs listed in various agency vacancy
announcements (i.e., Vacancy Announcement Nos. 48-98, 33-98, and
46-98). See Discrimination Complaint No. 4-G-770-0744-98 (Aug. 31,
1998); Discrimination Complaint No. 4-G-770-0745-98 (Aug. 31, 1998);
and Discrimination Complaint No. 4-G-770-0811-98 (Oct. 1, 1998).
The agency responded with a letter indicating that it had accepted the
three complaints, and that it was consolidating them for investigation
under agency Discrimination Complaint No. 4-G-770-044-98 (i.e., the
instant complaint). See Agency's Letter Accepting and Consolidating
Complaints for Investigation (Jan. 5, 1999).<1>
It appears that the agency then proceeded to investigate the relevant
claims. On October 28, 1998, agency EEO officials wrote to complainant,
explaining that:
At this stage of the complaint, you are required to submit all
information and documentation relating to your charge of discrimination.
The enclosed affidavit should be completed in it's [sic] entirety . . . .
This information must be returned within fifteen days of receipt of
this notice. Failure to return the affidavit in the allotted time,
with the information requested, may result in closure or dismissal of
your complaint . . . for failure to prosecute.
Agency's First Request for Affidavit (Oct. 28, 1998).
A copy of a signed receipt for certified mail contained in the record
indicates that complainant received this first request on November 6,
1998. See Receipt for Certified Mail (Sent Oct. 30, 1998 and Received
Nov. 6, 1998). She apparently never replied to the request, however.
Consequently, on December 4, 1998, the agency sent a follow-up letter,
asking once again for complainant's affidavit and related information.
This time, the agency said:
On [November 6, 1998] you received the Agency's first request that you
complete an affidavit and return it to the office within fifteen days
of receipt. To date, you have failed to respond. Please complete the
affidavit that was previously sent to you and return it to the EEO Office
within fifteen days of receipt of this notice . . . . Failure to [do so]
may result in closure or dismissal of your complaint . . . for failure
to prosecute.
Agency's Second Request for Affidavit (Dec. 4, 1998).
Another signed receipt for certified mail found in the record confirms
that complainant received this second request on December 8, 1998.
See Receipt for Certified Mail (Sent Dec. 4, 1998 and Received Dec. 8,
1998). However, complainant apparently never responded to this agency
request either. Consequently, on January 28, 1999, the agency issued
a final decision dismissing the associated complaints for complainant's
failure to cooperate in its investigation of the claims contained therein.
See Agency's Final Decision Dismissing Complaint No. 4-G-770-0744-98
(Jan. 26, 1999). According to this FAD:
On October 28, 1998, an affidavit was mailed via certified mail to you for
completion concerning your complaint. Records indicate that you received
the request on November 6, 1998, and you did not respond to the request.
On December 4, 1998, a second request was mailed to you, which you
received on December 8, 1998. Again, you have failed to respond to the
request for information pertaining to your complaint . . . . [Thus] [y]ou
have failed to cooperate with the agency by not providing the requested
information in the prosecution of your complaint despite the agency's
notice that failure to comply with the repeated requests would result
in the dismissal of your complaint. Since you have failed to properly
respond to the agency's request, your complaint is dismissed . . . .
Id. at 2.
Complainant filed a timely notice with this Commission challenging
this FAD. See Complainant's Notice of Appeal of Agency's Dismissal of
Complaint No. 4G-770-744-98 (Feb. 5, 1999). We accepted this notice,
and docketed it as the instant appeal. See Office of Federal Operations
Letter Acknowledging Receipt of Appeal (Feb. 10, 1999). Subsequently,
complainant's representative filed a brief statement in support of
this appeal. He argued that:
The agency dismissed this appeal [sic] in error by alleging that the
complainant has failed to pursue. Nothing could be further from
the truth. The agency has cited an affidavit which has requested
information already supplied to the agency several times. The agency
has all the information needed in the file to investigate the complaint.
Thus, we ask for a hearing.
Complainant's Statement in Support of Appeal (Feb. 5, 1999).
ANALYSIS AND FINDINGS
We turn now to the question of whether the agency properly dismissed
the complaints at issue for complainant's failure to cooperate. It is
true that agencies may, in limited circumstances, dismiss a complaint
of discrimination when the complainant refuses to prosecute the claims.
Under 29 C.F.R. � 1614.107(a)(7), a complaint may be dismissed if �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.� 29 C.F.R. � 1614.107(a)(7); see also Braide v. United
States Postal Service, EEOC Appeal No. 01A14211 (Oct. 4, 2001); Alcocer
v. Department of the Treasury, EEOC Appeal No. 01A14542 (Sept. 27, 2001);
and Henning v. United States Postal Service, EEOC Appeal No. 01A04924
(Sept. 19, 2001). Given the precise wording of the agency's two requests
for affidavits described above (and complainant's failure to respond to
them), these requirements appear to have been met here.
However, 29 C.F.R. � 1614.107(a)(7) also provides that, �[i]nstead of
dismissing for failure to cooperate, the complaint may be adjudicated
[by the agency] if sufficient information for that purpose is available.�
29 C.F.R. � 1614.107(a)(7). We find that, based on the record before
us, there is sufficient information to allow the investigation of the
relevant claims to proceed. For example, the agency �Information for
Precomplaint Counseling� forms filled out for each complaint at issue
(as well as the formal complaints themselves) detail the disputed
incidents, important dates, responsible agency officials, and bases
of discrimination. The agency therefore had ample facts to enable it
to proceed with a full investigation on the relevant claims. See, e.g.,
Informal Complaint of Discrimination No. 4-G-770-0744-98 (Jul. 22, 1998),
at 1-2; Informal Complaint of Discrimination No. 4-G-770-0745-98 (Jul. 22,
1998), at 1; and Informal Complaint of Discrimination No. 4-G-770-0811-98
(Aug. 13, 1998), at 1-2. Consequently, the agency's dismissal for
failure to cooperate was premature. See, e.g., Jackson v. Department of
the Army, EEOC Appeal No. 01993200 (Nov. 19, 2001); Bowers v. Department
of Justice, EEOC Appeal No. 01A14276 (Oct. 16, 2001); Powers v. Office
of Government Ethics, EEOC Appeal No. 01A11566 (Oct. 11, 2001); Edwards
v. United States Postal Service, EEOC Appeal No. 01A04965 (Oct. 4, 2001);
and Derrick v. Department of Defense, EEOC Appeal No. 01A02790 (Aug. 28,
2001); cf. Dogans v. Department of Housing and Urban Development, EEOC
Appeal Nos. 0199560, 01993253, and 01995577 (May 31, 2000) (noting that
this Commission �has long held that, as a general rule, an agency should
not dismiss a complaint where it has sufficient information on which
to base an adjudication,� and that use of 29 C.F.R. � 1614.107(a)(7)
is inappropriate �where there is sufficient information in the record to
determine whether to accept the complainant's claims without any further
input from complainant�); and Rusk v. Social Security Administration,
EEOC Appeal No. 01A04883 (Aug. 3, 2001) (providing that when an agency
finds that there is sufficient information in the record to enable it
to define the complaint and accept it for investigation � and when the
agency in fact does so and completes an investigation of the complaint
� the agency should not dismiss the complaint for failure to prosecute,
but rather should issue a decision on the merits).
The agency's dismissal was improper for another reason. Even when the
specific standards of 29 C.F.R. � 1614.107(a)(7) have been satisfied,
EEOC still has been quite reluctant to uphold dismissals under this rule.
As a result, we have engrafted an additional requirement onto 29 C.F.R. �
1614.107(a)(7) by limiting its application to cases where there is
a clear record of delay or �contumacious conduct� by the complainant.
See, e.g., Bowers v. Department of Justice, EEOC Appeal No. 01A14276
(Oct. 16, 2001); Laity v. Department of Veterans Affairs, EEOC Request
No. 05990104 (Aug. 16, 2001); Dogans v. Department of Housing and
Urban Development, EEOC Appeal Nos. 01991560 and 01993253 (May 31,
2000); Card v. United States Postal Service, EEOC Request No. 05970095
(Apr. 23, 1998); Anderson v. United States Postal Service, EEOC Request
No. 05940850 (Feb. 24, 1995); and Kroeten v. United States Postal Service,
EEOC Request No. 05940451 (Dec. 22, 1994).
In this case, complainant undeniably (and perhaps unjustifiably)
failed to respond to agency requests for information. Yet the
agency has presented no evidence demonstrating how complainant's
conduct was contumacious. While our decisions have not yet yielded
a singular definition of �contumacious conduct� in this context,
Black's Law Dictionary has defined it generally as �wilfully stubborn
and disobedient conduct . . . .� Black's Law Dictionary (6th ed. 1990);
cf. Random House Webster's Unabridged Dictionary (2nd ed. 1999) (defining
�contumacious� as �stubbornly perverse or rebellious; willfully and
obstinately disobedient�); and The American Heritage Dictionary of the
English Language (4th ed. 2000) (defining �contumacious� as �obstinately
disobedient or rebellious; insubordinate�). We see no reason to depart
from such a clear and concise interpretation of this critical phrase.
And, from our reading of the (admittedly sparse) record before us, we
certainly cannot conclude that complainant has displayed this sort of
defiant disobedience that alone can legitimize the use of the ultimate
sanction of dismissal.<2> See, e.g., Johnston v. United States Postal
Service, EEOC Appeal No. 01A14091 (Oct. 5, 2001); Anderson v. United
States Postal Service, EEOC Appeal No. 01997010 (Sept. 7, 2001);
and Turner v. Department of Transportation, EEOC Appeal No. 01996731
(Aug. 27, 2001); cf. Fitzgerald v. United States Postal Service, EEOC
Appeal No. 01A03492 (Aug. 28, 2001).
CONCLUSION
Accordingly, the agency's final decision dismissing Discrimination
Complaint No. 4-G-770-044-98 � and the accompanying Discrimination
Complaint Nos. 4-G-770-045-98 and 4-G-770-0811-98 � is vacated, and these
complaints are hereby remanded to the agency for investigation and/or for
a hearing before an EEOC administrative judge. We note that, at least
as of the time complainant filed a statement in support of her appeal,
she wanted a hearing. See Complainant's Statement in Support of Appeal
(Feb. 5, 1999).<3> The agency must therefore provide complainant with
notice of her immediate right to a hearing. The complainant, in turn,
must comply fully with any and all orders and requests for information
made during the hearing process (and must cooperate completely with
any agency investigation conducted in lieu of, or in conjunction with,
a hearing). See, e.g., 29 C.F.R. � 1614.108(c)(1) (providing that
a complainant must produce any and all documentary and testimonial
evidenced deemed necessary by agency officials assigned to investigate the
complaint(s)); and 29 C.F.R. � 1614.109(f)(1) (similarly stating that a
complainant must produce such documentary and testimonial evidence deemed
necessary by an administrative judge appointed to hear the complaint(s)).
Complainant's failure to do so could lead to the imposition of sanctions �
up to and including dismissal (albeit on different facts) � in the future.
See, e.g., 29 C.F.R. � 1614.108(c)(3); and 29 C.F.R. � 1614.109(f)(3);
cf. 29 C.F.R. � 1614.404(c).<4>
ORDER
The agency is ordered to process the remanded Discrimination Complaint
No. 4-G-770-0744-98 (and its companion Discrimination Complaint
Nos. 4-G-770-0745-98 and 4-G-770-0811-98) in accordance with 29 C.F.R. �
1614.108. The agency shall acknowledge to complainant that it has
received the remanded complaint(s) within thirty (30) calendar days of the
date this decision becomes final, and shall notify the complainant that
she has an immediate right to request a hearing and decision from an EEOC
administrative judge on the complaint(s). If a hearing is not requested,
the agency shall proceed to investigate the relevant complaint(s), and
shall issue to complainant a copy of the investigative file and also shall
notify complainant of the appropriate rights within one hundred fifty
(150) calendar days of the date this decision becomes final, unless
the matter is otherwise resolved prior to that time. If complainant
requests a final decision without a hearing, the agency shall issue a
final decision within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights 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 complainant. If the
agency does not comply with the Commission's order, complainant may
petition the Commission for enforcement of the order. See 29 C.F.R. �
1614.503(a). 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, 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). If 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 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 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; EEO MD-110, at 9-18. 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 the
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with the 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 complainant's complaint. However, if complainant wishes
to file a civil action, complainant has the right to file such action
in an appropriate United States District Court within ninety (90)
calendar days from the date that complainant receives this decision.
In the alternative, complainant may file a civil action after one
hundred and eighty (180) calendar days of the date complainant filed
complainant's complaint with the agency, or filed complainant's appeal
with the Commission. If complainant files a civil action, complainant
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 complainant's case in court. �Agency� or �department�
means the national organization, and not the local office, facility
or department in which complainant works. Filing a civil action will
terminate the administrative processing of the complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If complainant decides to file a civil action, and if complainant does
not have or cannot afford the services of an attorney, complainant may
request that the Court appoint an attorney to represent complainant and
that the Court permit complainant 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 complainant's 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
December 3, 2001
__________________
Date
1This January 5, 1999 letter was actually
sent to correct an original acceptance letter which had been sent
to complainant on October 23, 1998. The October 23, 1998 letter had
erroneously limited the scope of the agency's investigation to incidents
related only to agency Vacancy Announcement Nos. 48-98 and 33-98 (i.e.,
it omitted mention of agency Vacancy Announcement No. 46-98). Thus,
the subsequent January 5, 1999 acceptance letter corrected this earlier
mistake. Compare Agency's Letter Accepting and Consolidating Complaints
for Investigation (Oct. 23, 1998), at 1, with Agency's Letter Accepting
and Consolidating Complaints for Investigation (Jan. 11, 1999), at 1.
2 For instance, in complainant's appeal brief, her representative notes
that the affidavit the agency twice sought �requested information already
supplied to the agency several times.� See Complainant's Statement
in Support of Appeal (Feb. 5, 1999). If true, this would severely
undermine any agency claim of contumacious conduct by complainant.
Unfortunately for the agency, the record does not contain either the
affidavit in question, a description of the exact information the agency
was seeking, or any evidence disproving that complainant had indeed
supplied such information �several times.� If the agency is privy to
details that would further support a showing of contumacious conduct,
it has not presented them to us (and we see no reason to infer them).
3Indeed, as recently as April of 2001, complainant requested a hearing
on the instant complaint (albeit inappropriately and erroneously, given
that this appeal was pending at the time). See Order of Dismissal (May
16, 2001) (in which an EEOC administrative judge rejected complainant's
request for a hearing in this case, since the agency had already issued
a final agency decision on the relevant complaints and such complaints
had already been appealed by complainant to this Commission).
4As a final note, we urge the agency to consider the extent
to which its processing of an earlier complaint filed by this
complainant � Discrimination Complaint No. 4-G-770-0596-98 � may
affect the agency's handling of the complaint(s) being remanded here.
It appears that Discrimination Complaint No. 4-G-770-0596-98 concerned
a vacancy announcement at issue in one of the instant complaints
(specifically, Discrimination Complaint No. 4-G-770-0745-98). See, e.g.,
St. John-Metoyer v. United States Postal Service, EEOC Appeal No. 01990123
(Nov. 5, 1999) (indicating that the agency previously accepted for
investigation, as part of Discrimination Complaint No. 4-G-770-0596-98, a
claim related to Vacancy Announcement No. 33-98. This same agency vacancy
notice was at issue in Discrimination Complaint 4-G-770-0745-98, which
was of course consolidated with the instant complaint.) Interestingly,
the agency does not specifically reference this particular vacancy
announcement in its FAD (though it does explicitly mention the other
two vacancy announcements at issue in the consolidated complaints
considered herein). See Agency's Final Decision Dismissing Complaint
No. 4-G-770-0744-98 (Jan. 26, 1999), at 1. We cannot tell from the
record whether this omission was conscious or inadvertent.