01A42999_r
09-08-2004
Vivian J. Adams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Vivian J. Adams v. United States Postal Service
01A42999
September 8, 2004
.
Vivian J. Adams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42999
Agency No. 4G-752-0400-99
Hearing No. 310-A1-5541X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final action dated March 2, 2004, dismissing her 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.
In her formal complaint filed on August 12, 1999, complainant alleged that
she was subjected to discrimination on the bases of race (Caucasian), sex
(female), age (D.O.B. 9/8/52), and in reprisal for prior EEO activity when
on June 23, 1999, she was not allowed time off to heal after incurring
an injury.
The agency investigated the complaint, and pursuant to complainant's
request, forwarded the case to an EEOC Administrative Judge (AJ) for
a hearing. On September 4, 2003, the AJ issued complainant an Order to
Show Cause regarding the reason that the instant complaint should not
be dismissed, based on complainant's failure to attend July 28, 2003,
and August 18, 2003 settlement conferences. The record reveals that on
September 17, 2003, complainant, through her representative, responded to
the AJ's Order to Show Cause. Therein, complainant stated that she was
unable to attend the July 28, 2003 settlement conference because she was
under her doctor's care. Specifically, complainant stated that she broke
her foot on July 25, 2003, and that she was under her doctor's order �to
stay off her feet and minimum walking and not to drive for approximately
eight weeks.� Complainant stated that on July 27, 2003, she contacted
the Commission and left a recorded message stating that she would be
unable to attend the July 28, 2003 conference due to her broken foot,
but that she received no response. Complainant acknowledged receipt of
an email from the AJ stating that complainant's representative had not
heard from complainant. Furthermore, complainant stated that she did not
receive any written document concerning the August 18, 2003 settlement
conference and requested that the Order to Show Cause be withdrawn.
On September 23, 2003, the AJ issued an Order of Dismissal The AJ
dismissed the captioned complaint as a sanction against complainant,
due to failure to cooperate, pursuant to 29 C.F.R. � 1614.109(b)
and 29 C.F.R. � 1614.107(a)(7). Specifically, the AJ found that (1)
complainant failed to provide an affidavit to the EEO Investigator; (2)
failed to attend the July 28 and August 18, 2003 settlement conferences;
and (3) failed to communicate with her representative.
The agency's final action implemented the AJ's decision.
An AJ may dismiss a complaint as a sanction 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).
The sanctions available to an AJ for failure to provide requested
information include an adverse inference that the requested information
would have reflected unfavorably on the party refusing to provide the
requested information, or issuance of a decision fully or partially in
favor of the opposing party. Id. These sanctions must be tailored
in each case to appropriately address the underlying complaint 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. Dismissal
of a complaint by an AJ as a sanction is only appropriate in extreme
circumstances, where the complainant has engaged in contumacious conduct,
not simple negligence. See Thomas v. Department of Transportation,
EEOC Appeal No. 01870232 (March 4, 1988).
We note that the record contains a July 11, 2001 request for an affidavit
from the agency to complainant in which she was notified that she had
15 days from receipt of the request to reply. We further note that
complainant did not provide an affidavit as requested by the agency.
Moreover, the record reflects that the Commission's Dallas District
Office sent a document identified as �Order of Referral for Settlement
Conference � to the parties on November 27, 2001. Therein, the Order
informed the parties that the settlement conference was mandatory, and
that any conflict with the scheduling which could not be resolved among
the parties is to be immediately referred to the paralegal specialist
for resolution. Complainant did not attend the July 28 and August 18,
2003 settlement conferences. We note that in her September 9, 2003
email correspondence to the AJ and on appeal, complainant stated that
she attempted to resolve her conflict with the AJ without any success.
Furthermore, we note that the record reveals that complainant failed to
communicate with her representative during the relevant time period.
We note that the record reveals that complainant's representative
was present during the August 18, 2003 settlement conference, but was
unable to participate for complainant because of complainant's failure
to communicate with him. We further note that during the August 18,
2003 settlement conference, the representative acknowledged that he had
not heard from complainant for quite some time.
After a review of the record, we determine that the AJ acted within
his/her discretion in not holding the hearing requested by complainant.
However, we also find that the record in this case is fully developed
and contains sufficient evidence for the agency to render a decision on
the merits of the complaint. As the AJ should have remanded the instant
complaint to the agency to render a decision on the merits, the Commission
will remand the case to the agency for the issuance of a final decision on
the merits. See Reed v. USPS, EEOC Appeal No. 01A05039 (January 3, 2001);
Reed v. U.S. Postal Service, EEOC Appeal No. 01A05039 (January 3, 2001).
For the reasons set forth above, we VACATE the agency's final action,
which adopted the AJ's dismissal, and we REMAND the case to the agency
to issue a decision on the merits of the case, as more fully set forth
in the ORDER below.
ORDER
Within sixty (60) calendar days from the date that this decision becomes
final, the agency shall issue a final decision on the captioned complaint
in accordance with 29 C.F.R. � 1614.110. A copy of the agency's final
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
September 8, 2004
__________________
Date