01A01933
09-19-2002
Kim L. Cosley-Jordan, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Kim L. Cosley-Jordan v. Department of the Army
01A01933
September 19, 2002
.
Kim L. Cosley-Jordan,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A01933
Agency Nos. 97AR0146E; 97AR0050E; 97AR0068E
Hearing Nos. 100-98-8148X; 100-98-8190X; 100-98-8191X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision concerning her complaints 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.<1>
At the conclusion of the investigations into two of complainant's
complaints, complainant requested a hearing before an EEOC Administrative
Judge. A video teleconference hearing was originally scheduled for
June 1998, but subsequently, prior to the amendments to 29 C.F.R. Part
1614 in November 1999, an Administrative Judge remanded two of the
above referenced complaints for consolidation with a third complaint
which complainant had filed in the interim. Upon the completion the
investigation of the third complaint, complainant again requested
a hearing and the complaints were consolidated and assigned to a
different Administrative Judge. By Acknowledgment Order and Order
Regarding Discovery and Summary Judgment issued on February 11, 1999,
the Administrative Judge ordered the parties to complete discovery
within ninety days and to answer her Notice of Summary Judgment with
fifteen days of the end of the discovery period. The Administrative
Judge advised the parties that their failure to do so would result in
sanctions, including dismissal or a decision in favor of the opposing
party. Complainant failed to respond and by Order dated September 20,
1999, the Administrative Judge stated that complainant had forfeited
her right to proceed in the hearing process and recommended that the
agency dismiss the complaints. The agency instead issued a decision on
the merits, finding no discrimination.
The Administrative Judge's authority to issue sanctions is set forth
at 29 C.F.R. � 1614.109(f)(3). Additional guidance can be found in EEO
MD-110, 7-9 and Rules 11 and 37 of the Federal Rules of Civil Procedure.
In appropriate circumstances, an Administrative Judge may sanction a party
for its conduct. Sanctions should be tailored to deter the party from
similar conduct in the future and, if warranted, to equitably remedy any
harm incurred by the opposing party. Sanctions should not be so severe
that they result in inequity, nor should they be so lenient that they
fail to serve as a deterrent. If a lesser sanction would suffice to
deter the conduct and to equitably remedy the opposing party, it may
constitute an abuse of discretion to impose a harsher sanction. See
Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8,
2000). Administrative Judges must distinguish between conduct that does
not warrant the imposition of a sanction and conduct which does.
The dismissal order explicitly relied on the complainant's failure
to respond to a Notice of Summary Judgment. This is not the type of
conduct which an Administrative Judge should sanction. See Johnson
v. Department of the Treasury, EEOC Appeal No. 01996592 (July 31, 2002).
Accordingly, the agency's final decision and the Administrative Judge's
dismissal order are vacated, and the complaint is remanded for further
processing in accordance with the Order below.
ORDER (E0900)
Within thirty (30) calendar days of the date this decision becomes final,
the agency shall contact complainant to determine which EEOC District
Office is within commuting distance of her residence and shall then submit
to the Hearings Unit of the appropriate EEOC District Office a request for
an EEOC Administrative Judge to process the remanded complaints: agency
nos. 97AR0146E; 97AR0050E; and 97AR0068E. With this request the agency
shall submit a copy of the complaint files for the three complaints,
including administrative and investigatory files, all correspondence
to and from the Administrative Judge by the parties, and this decision.
Thereafter, the Administrative Judge shall issue a decision in accordance
with 29 C.F.R. � 1614.109, and the agency shall issue a final action in
accordance with 29 C.F.R. � 1614.110.
The agency must present evidence, e.g. a hearings unit number and the
name of the Administrative Judge assigned to process the complaint,
to the Commission's Compliance Officer, as referenced in the paragraph
entitled �Implementation of the Commission's Decision,� to ensure that
the Commission's Compliance Officer can verify that an Administrative
Judge has been assigned to process these complaints.
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 19, 2002
__________________
Date
1 A duplicate appeal was docketed as EEOC
Appeal No. 01A02072 and administratively closed on March 20, 2000.
Correspondence received from complainant establishes that the duplicate
filing caused confusion as to her right to submit a statement in support
of her appeal.