01A11224
08-08-2002
Stanley A. Conaway, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Stanley A. Conaway v. United States Postal Service (Eastern Area)
01A11224
August 8, 2002
.
Stanley A. Conaway,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A11224
Agency No. 1-C-081-1035-94
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq.<1> The appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission vacates
the agency's final order and remands the complaint for a hearing.
The record reveals that complainant, a PS-6 MPE Mechanic at the agency's
Processing & Distribution Center in Bellmawr, New Jersey, filed a formal
EEO complaint on May 16, 1995, alleging that the agency discriminated
against him on the bases of race (African-American), disability
(adjustment disorder with anxious mood; major depression), and reprisal
for prior EEO activity (protected by unspecified statute) when:
(1) on May 8, 1994, he became aware that a July 30, 1991, a Notice of
Proposed Enforced Leave was left in a utility cart where it could be
viewed and read by any employee; and
in a memo dated June 7, 1994, the Acting Maintenance Manager (AMM) stated
that it would be unwise to place complainant in a position of authority
for the foreseeable future, precluding him from the 204B program.
The EEO Counselor's Report indicates that complainant contacted an EEO
Counselor regarding (1) on May 25, 1994, and regarding (2) on September
13, 1994. On July 22, 1995, the agency issued a final decision accepting
(1) for an investigation, and dismissing (2) due to untimely EEO Counselor
contact. The agency stated that (2) allegedly occurred on June 7, 1994,
but as complainant did not contact an EEO Counselor until September
13, 1994, his contact was beyond the requisite time limit set by the
regulations. In Stanley A. Conaway v. USPS, EEOC Appeal No. 01956086
(June 26, 1996), we vacated the dismissal of (2) and remanded the
complaint to the agency for a determination on whether (2) was timely.
The agency made no specific determination, but agency conducted a
supplemental investigation. At the conclusion of the investigation,
complainant received a copy of the investigative report and requested a
hearing before an EEOC Administrative Judge. When complainant failed
to appear at the hearing, the Administrative Judge cancelled the
hearing, over the objection of complainant's counsel, who did appear.
The Administrative Judge remanded the complaint to the agency for a final
decision on the merits. By FAD dated October 31, 2000, the agency found
no discrimination regarding (1) and again dismissed (2) as untimely.<2>
This appeal followed.
For the following reasons we conclude that the Administrative Judge
abused her discretion in cancelling the hearing. Therefore, we vacate
the agency's FAD dated October 31, 2000, and remand the complaint for a
hearing. An Administrative Judge may sanction a complainant for failure
to cooperate pursuant to the provisions of 29 C.F.R. � 1614.109(f)(3).
See Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8,
2000). Sanctions must be tailored in each case 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 Administrative Judge may be abusing his
or her discretion to impose a harsher sanction.
In this case, complainant was not under an obligation to appear in person
at the hearing. Complainant was represented at the hearing by counsel and
there is no evidence in the record that the Administrative Judge ordered
complainant to appear. Complainant should have been allowed to proceed at
the hearing through counsel, assuming that genuine issues of fact were in
dispute. The agency points to no authority in our regulations or case law
which supports the cancellation of a hearing under these circumstances.
The Commission has previously affirmed decisions by Administrative
Judges who cancel hearings as a sanction when a complainant fails
to appear. See e.g., Cruz v. Department of the Air Force, EEOC Appeal
No. 01A11787, (May 15, 2002); Thymes v. United States Postal Service,
EEOC Appeal No. 01994088 (February 23, 2001). However, in those cases,
the complainant was not represented at the hearing by counsel. On these
facts we conclude that the Administrative Judge erred in canceling the
hearing. Accordingly, we decline to decide the issue of whether or not
(2) is timely since such a decision may ultimately depend on the facts as
established during the the hearing portion of the investigative process.
Therefore, because the Administrative Judge erred in canceling the
hearing, we vacate the agency's FAD dated October 31, 2000, and remand
this complaint for a hearing consistent with this decision and the
order below.
ORDER
The agency is directed to submit a copy of the entire complaint file,
including the supplemental investigation, to the EEOC Hearings Unit,
Indianapolis District Office, within fifteen (15) calendar days of
the date this decision becomes final. The agency shall provide written
notification to the Compliance Officer at the address set forth below that
the complaint file has been transmitted to the Hearings Unit. Thereafter,
the Administrative Judge shall issue a decision on the complaint in
accordance with 29 C.F.R. � 1614.109 and the agency shall issue a final
action in accordance with 29 C.F.R. � 1614.110.
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
August 8, 2002
__________________
Date
1 The Rehabilitation Act was amended in 1992 to apply the standards of
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2 With respect to (1), the FAD incorrectly presumes that only individuals
with disabilities receive protection from the improper disclosure of
medical records. To the contrary, the Rehabilitation Act does not
limit the prohibitions against improper disclosure of confidential
medical information, and improper medical inquiries, to individuals
with disabilities. 29 C.F.R. � 1630.14(c). Our regulations provide
that information obtained regarding the medical condition or history
of any employee shall be treated as a confidential medical record. Id.
The Commission regards documentation of the individual's diagnosis or
symptoms as confidential medical information. ADA Enforcement Guidance:
Preemployment Disability-Related Questions and Medical Examinations"
(October 10, 1995) at 22 n.26.