01A14662_r
06-20-2002
James H. Ricketts v. Department of Commerce
01A14662
June 20, 2002
.
James H. Ricketts,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A14662
Agency No. 99-63-00356D
DECISION
Complainant filed a timely appeal with this Commission from an agency's
final order dated June 29, 2001, dismissing his 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 his complaint, complainant alleged that he was
subject to discrimination on the bases of race (Native American/Black),
national origin (American/Blackfoot Indian), color (brown), religion
(Christian), sex (male), and age (D.O.B. 10/22/45), when: (1) an
instructor was evasive and ignored or overlooked his class participation;
(2) during the four days he was employed as a clerk he was harassed in
the office by his supervisor; and (3) he was terminated from his position
as clerk.
The record reveals that during the relevant time, complainant
was employed as a temporary clerk with the agency's Indianapolis,
Indiana Local Census Office. Complainant sought EEO counseling and
subsequently filed a formal complaint on March 5, 1999. On August 9,
1999, complainant was informed of his right to request a hearing before
an EEOC Administrative Judge (AJ) or a final decision by the agency.
Complainant requested a hearing before an AJ.
On December 4, 2000, the AJ issued an Acknowledgment Order notifying the
parties of possible sanctions for failure to comply with any orders issued
by the Commission. Simultaneously, the AJ issued a Scheduling Order
setting the prehearing conference for January 25, 2001. On the day of
the prehearing conference, the AJ called the agency representative who was
prepared to proceed. The AJ also called complainant at the two telephone
numbers he provided, but complainant was unreachable. The AJ then issued
an Order to Show Cause dated February 1, 2001, ordering complainant to
show cause for his failure to appear for the telephone conference on
January 25, 2001. Complainant timely responded to the Show Cause Order
but did not explain his failure to appear at the telephone conference.
In his response, complainant challenged the AJ's authority to order a
telephonic conference. Specifically, the AJ stated that complainant
merely chastised her for scheduling a telephonic prehearing conference
as opposed to an in person conference. Due to complainant's failure
to address the reasons for his not being available for the prehearing
conference, the AJ issued a Dismissal Order dated June 1, 2001, dismissing
complainant's complaint pursuant to 29 C.F.R. � 1614.109(f)(3)(v) for
failure to cooperate. The agency issued a final order dated June 29,
2001, adopting the AJ's decision to dismiss complainant's complaint.
An AJ may sanction a party pursuant to 29 C.F.R. � 1614.109(f)(3),
when a party fails without
good cause shown to respond fully and in timely fashion to an order
of an AJ, or requests for the investigative file, documents, records,
affidavits, or the attendance of witnesses. The sanctions available to
an AJ for failure to provide requested relevant information include an
adverse inference that the requested information would have reflected
unfavorably on the party refusing to provide the requested information,
exclusion of other evidence offered by 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 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.
The Commission notes that the AJ dismissed complainant's claim because
complainant failed to provide an explanation in response to the AJ's
order to show good cause for his failure to appear for the telephonic
prehearing conference. Although complainant submitted a brief response
to the AJ's dismissal, we find that there is no evidence in the record
establishing sufficient good cause to excuse complainant's failure to
comply with the AJ's order. Instead, we find that the record confirms
the AJ's conclusion that complainant failed to comply with her order,
failed to appear at the prehearing conference, and failed to provide
any credible reason for his failures.
Therefore, given complainant's unexplained failure to comply with the
AJ's orders, and in light of the agency's full and timely compliance,
we find that the AJ acted within her discretion in not holding the
hearing requested by complainant. The Commission finds, however, that
under the instant circumstances, dismissal of the complaint was too
severe a sanction. The Commission finds that an appropriate sanction
would have been dismissal of complainant's request for a hearing.
The Commission finds that the agency should have rendered a decision
on the merits of the complaint. Therefore, we find that the agency's
dismissal of the complaint was improper. The Commission shall remand
the case to the agency for the issuance of a final decision on the merits
of the compliant.
The agency's dismissal of the complaint is REVERSED and we REMAND the
complaint to the agency to render a final decision on the merits of the
complaint pursuant to the ORDER below.
ORDER
The agency shall, within 60 days of the date this decision becomes final,
issue a decision on the merits of the remanded complaint pursuant to 29
C.F.R. � 1614.110. A copy of the agency's decision must be sent to the
Compliance Officer as referenced herein.
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
June 20, 2002
__________________
Date