01A12893_r
08-06-2002
Mary L. Walker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mary L. Walker v. United States Postal Service
01A12893
August 6, 2002
.
Mary L. Walker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A12893
Agency No. 4E-890-0017-99
DECISION
The Commission finds that the agency's February 12, 2001 decision
dismissing complainant's complaint was improper. Complainant alleges
that she was discriminated against on the bases of sex and age when her
paychecks received on September 18, 1998 and October 30, 1998, were short
paid due to timekeeping errors. On October 4, 2000, an Administrative
Judge (AJ) issued a Notice of Intent to Issue a Decision Without a
Hearing, which warned complainant that failure to comply could lead
to dismissal. When complainant failed to respond to the Notice, the AJ
dismissed the complaint pursuant to 29 C.F.R. � 1614.109(b). The agency,
on February 12, 2001, issued a decision adopting the AJ's decision.
We find the AJ's dismissal to be improper. It is noted that the AJ has
the authority to sanction a party for failure without good cause shown
to fully comply with an order. 29 C.F.R. � 1614.109(f)(3). However,
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 Hale v. Department of Justice,
EEOC Appeal No. 01A03341 (December 8, 2000). Upon review, the Commission
finds that complainant's failure to respond to the AJ's Notice does
not rise to the level of contumacious conduct. Therefore, to the extent
that the AJ intended to sanction complainant, the Commission finds that
the AJ's sanction to dismiss the complaint was improper. In the instant
case, the Commission finds that the AJ should have canceled the hearing
and remanded the complaint to the agency. Therefore, we find that the
agency's dismissal of complainant's complaint was also improper.
The agency's decision dismissing complainant's complaint is REVERSED and
we REMAND the matter to the agency for further processing in accordance
with this decision and applicable regulations.
ORDER
The agency, within 60 calendar days of the date this decision becomes
final, shall take final action on the merits in accordance with 29
C.F.R. � 1614.110(b). 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
August 6, 2002
__________________
Date