Tamara Donald, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.

Equal Employment Opportunity CommissionDec 3, 2001
01992031 (E.E.O.C. Dec. 3, 2001)

01992031

12-03-2001

Tamara Donald, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.


Tamara Donald v. United States Post Office

01992031

December 3, 2001

.

Tamara Donald,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(Great Lakes Area),

Agency.

Appeal No. 01992031

Agency No. 4-J-604-0009-98

Hearing No. 210-98-6461X

DECISION

Complainant timely initiated an appeal from the agency's final

decision concerning her equal employment opportunity (EEO) 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.<1> The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

For the following reasons, the Commission reverses the agency's final

decision and remands the complaint for further processing.

The record reveals that complainant was an applicant for a position

at the agency's South Suburban Processing and Distribution Center in

Bedford Park, Illinois. Complainant underwent a pre-employment medical

examination and in spite of being declared, by her physician, able to (1)

lift seventy pounds safely and frequently; and (2) work with no medical

restrictions, the agency's Area Medical Officer determined that she was

not medically qualified to perform the essential functions of a Flat

Sorter Operator position because she represented a �medical risk.�<2>

Complainant filed a formal EEO complaint on January 3, 1998, alleging

that the agency had discriminated against her on the basis of disability

(wrist and knee conditions) when it declined to hire her.

At the conclusion of the investigation, complainant was provided a

copy of the investigative report and requested a hearing before an

EEOC Administrative Judge. On October 19, 1998, the Administrative

Judge issued an Order stating that because of complainant's �failure to

prosecute or proceed without delay,� the hearing was canceled and the

complaint file returned to the agency for a decision on the merits.

In support of this Order, the Administrative Judge stated that she

issued a Scheduling Notice announcing that a pre-hearing conference

call was scheduled for October 19, 1998 at 10:00 a.m. On that date,

the Administrative Judge contacted the agency's representative who was

prepared to proceed with the pre-hearing conference. The Administrative

Judge stated that she could not contact complainant because of

complainant's failure to submit a telephone number and address.

The Administrative Judge further stated that complainant also�failed to

file any of the required submissions.� The Administrative Judge noted

that the �Scheduling Notice specifically notified the parties that failure

by the complainant to participate in the pre-hearing conference would

be treated as failure to prosecute or proceed without delay, and the

complaint file would be returned to the agency.�

The agency issued a decision finding no discrimination, and complainant

appealed to this Commission. On appeal, complainant contends that: (1)

she was waiting for the conference call at the appointed time; (2) her

address and telephone number were in the complaint file; (3) she called

the Administrative Judge on October 19, 1998 after the conference call

did not materialize; and (4) the Administrative Judge informed her that

instructions for the agency to dismiss the case had already been mailed.

Complainant requests that she be granted a hearing on the merits of

her case.

The Administrative Judge's authority to issue sanctions is set forth at 29

C.F.R. � 1614.109(f)(3). In appropriate circumstances, an Administrative

Judge may sanction a party for its conduct. 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 Administrative Judge must distinguish between conduct that does not

warrant the imposition of a sanction and conduct which does. For example,

a complainant's failure to submit a Designation of Representative Form or

failure to respond to a notice of the Administrative Judge's intent to

issue a decision without a hearing is not the type of conduct which an

Administrative Judge should sanction. Id. However, a party's failure

to obey an Administrative Judge's order to produce a document during

discovery or to expedite an investigation may be cause for a sanction.

When a complainant fails to respond to an Administrative Judge's order

and there is no good cause to excuse the failure to respond, if the

complainant has received proper notice, the Commission has found that

treating the complainant's conduct as a withdrawal of her hearing request

may be an appropriate use of an Administrative Judge's sanction authority

under 29 C.F.R. � 1614.109(f)(3)(v). See LeBlond v. Department of

the Treasury, EEOC Appeal No. 01A02534 (February 15, 2001). However,

we find that in the instant case, the sanction was inappropriate.

In support of this conclusion, we note that complainant's telephone

number was contained in the complaint file. We therefore find that the

Administrative Judge could have contacted complainant, notwithstanding

complainant's failure to remit her telephone and address directly to the

Administrative Judge. We also find that complainant's prompt attempt to

contact the Administrative Judge concerning the failed conference call

evidenced complainant's good faith effort to proceed with her complaint.

Accordingly, we find that in denying complainant's request for a hearing,

the Administrative Judge abused her discretion. Therefore, the Commission

reverses the agency's final decision and remands this matter for further

processing in accordance with the Order below.

ORDER

The agency shall submit to the Hearings Unit of the Chicago District

Office the request for a hearing and a copy of the complaint file 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

December 3, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1 The Rehabilitation Act was amended in 1992 to apply the standards in

the Americans with Disabilities Act (ADA) to complaints of discrimination

by federal employees or applicants for employment.

2 The record does not conclusively establish that at the time of the

medical examination, complainant had a conditional offer of employment.