01A21273
08-22-2003
Veda M. Odle, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Veda M. Odle v. United States Postal Service
01A21273
August 22, 2003
.
Veda M. Odle,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A21273
Agency Nos. 4D-250-0033-00 and 4D-250-0054-00
Hearing No. 120-A0-3648X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission reverses the agency's final order.
The record reveals that complainant, a Postmaster at the agency's
Collinsville, West Virginia, Post Office, filed a formal EEO complaint on
December 30, 1999, alleging that the agency had discriminated against her
on the bases of sex (female), disability (post-traumatic stress syndrome),
age (D.O.B. 9/26/58), and in reprisal for prior EEO activity when she:
(1) received a merit performance rating of "Not Rated" for fiscal year
(FY) 1999; and,
received a letter, dated November 8, 1999, notifying her that she
was denied an incentive credit under the Economic Value Added (EVA)
Variable Pay Program for FY 1999.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). The AJ issued a decision without a
hearing making a preliminary finding of age and sex discrimination
on November 8, 2000. Thereafter, complainant submitted evidence of
compensatory damages and attorney fees, and the agency was granted
30 days to conduct discovery concerning the complainant's damages.
The AJ scheduled a hearing on relief and damages for May 22, 2001, and
complainant identified herself, her husband, her son and her treating
psychiatrist as witnesses. The agency declined to call any witnesses.
In his order entering judgement, the AJ determined that the affidavits
and psychiatric reports submitted by the complainant required a hearing
on damages. The AJ stated that there was a paucity of evidence as to
what damages were incurred by complainant as a result of her complaint.
The record reveals that the week before the hearing, a conference
call was held between the complainant, the agency and the AJ in order
to resolve the matter. On May 21, 2001, a second call was held and
later that day, the AJ checked into a hotel in Richmond, Virginia, in
preparation to attend the hearing the following day. The AJ stated that
he received a message from complainant's counsel that said that neither
he nor the complainant would be attending the hearing. The AJ stated
that complainant's counsel told him that he was withdrawing her request
for a damages hearing and was resting her case on the existing record.
The AJ stated that he later held a conference call with complainant's
counsel who reiterated the message he had previously left. The AJ
stated that he advised counsel that the complaint would be dismissed
for failure to prosecute if they failed to attend the hearing.
Counsel requested to have the hearing by telephone, but the agency
objected and the AJ sustained the objection. Upon his return to his
office, the AJ stated that complainant's counsel had filed a "Request
for Decision on the Existing Record," at 3:05 p.m. on May 21, 2001.
The AJ found that complainant's counsel had devised a strategy, in
the hope of a settlement, that he and his client would mislead the
agency and the AJ into believing that they would attend the hearing.
Complainant's counsel stated that complainant was unable to undergo
the financial and emotional cost of a hearing on compensatory damages.
The AJ issued a decision without a hearing finding no discrimination on
the bases of sex, age, mental disability and reprisal.
The agency's final order implemented the AJ's decision. In his timely
appeal, complainant's new counsel does not dispute the AJ's factual
determination regarding the conduct of complainant's previous attorney.
However, complainant's counsel contends that the imposition of sanctions,
including a reversal of the finding of discrimination, is unconscionable
and was beyond the authority of the AJ.
Here, the complainant does not dispute the conduct of her previous
counsel. Additionally, the AJ notified the complainant's attorney that
the failure to attend the hearing would lead to a sanction. An AJ has the
authority to sanction either party for failure without good cause shown
to fully comply with an order. 29 C.F.R. 1614.109(f)(3); EEOC Management
Directive 110 Chapter 7, pp. 9-10 (1999). However, such 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 AJ may be abusing his or her discretion to impose a harsher sanction.
In the present case, complainant's attorney mislead the agency and the AJ
into believing that he, complainant, and her witnesses would attend the
scheduled hearing. Therefore, while we agree that complainant's conduct
warrants a sanction, we find that the AJ erred in issuing a decision
without a hearing. The issuance of a decision without a hearing by an
Administrative Judge is appropriate only when there exists no dispute of
a genuine issue of material fact and when the record has been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
Given that the agency conducted a full investigation of the complaint,
we find that the appropriate sanction here is to remand the complaint to
the agency for the issuance of a decision on the merits pursuant to 29
C.F.R. 1614.110(b). Accordingly, the agency's final order is REVERSED,
and this complaint is REMANDED to the agency for further processing in
accordance with this decision and the Order below.
ORDER
Within sixty (60) calendar days of the date that this decision becomes
final, the agency shall take final action on the merits of agency
case nos. 4D-250-0033-00 and 4D-250-0054-00 in accordance with 29
C.F.R. 1614.110(b). A copy of the final agency decision 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
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 22, 2003
__________________
Date