01A10672
08-20-2002
Robert N. Ghantous, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Robert N. Ghantous, Jr. v. United States Postal Service
01A10672
August 20, 2002
.
Robert N. Ghantous, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A10672
Agency No. 1C-451-0070-99
Hearing No. 220-AO-5016X
DECISION
The record indicates that complainant filed his complaint alleging
that he had been discriminated against on the basis of his sex (male)
when on January 20, 1999, he was turned down for promotion in light of
experience and training and even though a female employee on maternity
leave was promoted.<1> After the investigation of the complaint,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
On April 17, 2000, the AJ issued an order dismissing the complaint for
failure to cooperate. Specifically, the AJ stated that on March 29,
2000, he issued an Order to Show Cause to the complainant regarding
why he failed to appear for a prehearing conference and/or provide
the agency representative with a telephone number at which he could
be reached for a telephonic conference scheduled for March 29, 2000.
The AJ noted that the Order to Show Cause notified complainant that
a failure to respond to the Order in seven days would result in the
dismissal of his complaint. The AJ stated that complainant failed to
respond to the Order to Show Cause.
In its decision dated January 31, 2001, the agency dismissed the
complaint on the grounds that complainant failed to cooperate.
On appeal, complainant indicates that he was unable to attend the
prehearing conference because he was incapacitated for approximately
six months in treatment facilities for depression, alcohol, and drugs.
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 Show Cause Order 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 should
have canceled the hearing and remanded the complaint to the agency.
Furthermore, the agency's dismissal of the complaint on the procedural
grounds for failure to cooperate when it had sufficient information on
which to base an adjudication was improper in the instant case under 29
C.F.R. �1614.107(a)(7). The Commission finds that since the investigation
of the complaint was completed, the agency should have issued a decision
on the merits of the complaint.
Accordingly, the agency's decision is hereby REVERSED. The complaint
is REMANDED to the agency for further processing in accordance with the
Order below.
ORDER
The agency, within sixty (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 20, 2002
__________________
Date
1It is noted that complainant also alleged
the claim concerning his December 10, 1998 Letter of Warning, which was
previously decided by the agency's May 25, 1999 decision.