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.