01A03574_r
01-03-2002
Maria V. Carmona, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Maria V. Carmona v. Department of Treasury
01A03574
January 3, 2002
.
Maria V. Carmona,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01A03574
Agency Nos. 96-1259R, 96-1313, 97-1139R, 97-1238
Hearing No. 100-99-7011X
DECISION
Complainant filed a timely appeal with this Commission from an agency
final order dismissing her four complaints of unlawful employment
discrimination brought pursuant to 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 four separate complaints, complainant alleged
that she was subjected to discrimination on the bases of national origin
(Hispanic), sex (female), age (D.O.B. 8/10/52), and in reprisal for prior
EEO activity when she was treated unfairly with respect to various terms
and conditions of employment.
At complainant's request, the agency forwarded the accepted issues
from the above referenced complaints for a hearing before an EEOC
Administrative Judge (AJ). The AJ consolidated the four complaints
for hearing.
A pre-hearing conference was scheduled in this matter for February 18,
2000 at 10:00 a.m. in the EEOC's Washington Field Office located in
Washington, D.C. The record reveals that there was snow fall in the
Washington area on the morning of February 18, 2000. Complainant and
her representative reside in Fulton, Maryland, approximately twenty
miles from downtown Washington, D.C. The federal government was open for
business on February 18, 2000; however, nonessential federal employees
were advised that unscheduled leave was authorized. The record shows
that complainant's representative telephoned the Washington Field
Office at approximately 9:00 a.m. and told the receptionist that he and
complainant would not be appearing for the pre-hearing conference due
to the inclement weather. Complainant's representative also mailed a
letter dated February 18, 2000, to the attention of the AJ, referencing
the 9:00 am telephone call and stating that both he and complainant were
unable to attend the pre-hearing conference based on the �adverse weather
conditions.� Complainant's representative also certified that the letter
was mailed on February 18, 2000. Both the agency representative and the
AJ appeared for the pre-hearing conference, but neither complainant nor
her representative appeared at the conference.
On February 18, 2000, the AJ issued a Show Cause Order. The Show Cause
Order directed complainant to explain her failure to appear at the
pre-hearing conference.
Complainant's representative responded to the Show Cause Order on March
6, 2000. In his response, complainant's representative stated that
he and complainant were unable to attend the conference due to the ice
storm which was progressively worsening. Complainant's representative
stated that he and complainant considered the decisions of the Office
of Personnel Management, the District of Columbia Government, the
local school districts, and their own immediate appraisal of the local
conditions in arriving at their decision not to attend the pre-hearing
conference.
On March 15, 2000, the AJ issued an Order dismissing complainant's
complaint for failure to appear at the pre-hearing conference. The AJ
stated that on February 18, 2000, the Washington, D.C. area had received
a �dusting of wet snow� but noted that the federal government was �open
for business.� The AJ stated that complainant made no attempt to contact
him directly and concluded that the decision not to attend the pre-hearing
conference was not complainant's to make. The AJ noted that complainant
had the AJ's direct telephone number. The AJ found that it is a �gross
exaggeration� to characterize the weather on the date in question as an
ice storm and to suggest that the conditions were worsening throughout the
day. The AJ noted that by 9:30 a.m. the roads were clear and there was
no precipitation of any form. The AJ concluded that complainant's four
complaints should be dismissed for failure to cooperate pursuant to 29
C.F.R. � 1614.109(b) and as a sanction for failure to appear and failure
to show just cause for her nonappearance at the pre-hearing conference.
The agency subsequently issued a decision fully implementing the AJ's
decision.
An AJ may dismiss complaints pursuant to 29 C.F.R. � 1614.107, on his
or her own initiative, after notice to the parties, or upon an agency's
motion to dismiss a complaint. See 29 C.F.R. � 1614.109(b). Dismissal
of the instant complaint under � 1614.107(a)(7) is inappropriate in the
instant matter because the agency has not shown that the agency made a
request of complainant for which complainant did not adequately respond.
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.
Such sanctions may 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, issuance of a
decision fully or partially in favor of the opposing party, or other such
actions as appropriate. 29 C.F.R. � 1614.109(f)(3). 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.
In this case, the AJ dismissed the present case due to complainant's
failure to appear at the February 18, 2000 pre-hearing conference.
The AJ supports the dismissal with an Acknowledgment and Settlement
Conference Order dated November 4, 1998, which warns that "failure by
Complainant to attend or participate in the settlement conference shall
result in immediate dismissal of the complaint. Failure by the Agency
to attend or participate in the settlement conference shall result in
the imposition of appropriate sanctions.� Complainant argues that she
showed good cause for failure to appear at the pre-hearing conference.
Upon review of the record and complainant's statements on appeal, we
find that complainant did not show good cause for her failure to appear
at the pre-hearing conference.
Therefore, given complainant's failure to comply with the AJ's Order,
we find that the AJ properly canceled the hearing. 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. The Commission finds that complainant's conduct
was not such that dismissal of the entire complaint was appropriate.
The Commission finds that such a sanction of dismissal of the entire
complaint, under the instant circumstances, is too severe. The Commission
finds that the appropriate sanction in the instant matter is cancellation
of complainant's right to a hearing. Therefore, we find that the AJ's
dismissal of the complaint, and the agency's adoption of this decision,
was improper, and that the AJ should have instead remanded the complaint
to the agency to render a decision on the merits of the complaint.
Accordingly, the agency's final action is REVERSED and the complaint
is REMANDED to the agency for further processing in accordance with the
Order below.
ORDER
The agency is ordered to render a decision on the merits of the remanded
complaint. The agency shall issue this final action to complainant
within 60 calendar days of the date this decision becomes final.
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
January 3, 2002
__________________
Date