Parthapratim Basu, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionOct 24, 2001
01A04132_r (E.E.O.C. Oct. 24, 2001)

01A04132_r

10-24-2001

Parthapratim Basu, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.


Parthapratim Basu v. Department of Agriculture

01A04132

October 24, 2001

.

Parthapratim Basu,

Complainant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A04132

Agency No. 971073

Hearing No. 100-99-7131X

DECISION

Complainant filed a timely appeal with this Commission from an agency

decision dated December 12, 1999, 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. In his

complaint, complainant alleged that he was subjected to discrimination

on the bases of race (Asian American), color (brown), national origin

(Indian), religion (Hindu), marital status (married), and in reprisal

for prior EEO activity when:

Complainant was not selected for the Senior Executive Service (SES)

position of USDA Code Manager, vacancy announcement FSIS-96-60A in

July 1997;

Complainant was not selected for the SES position of Assistant Deputy

Administrator for Field Operations in July 1997;

Complainant was denied selection or referral for the Federal Executive

Training in July 1997; and

Complainant was denied the opportunity to �act� in his supervisor's

absence in August 1998.

The agency accepted complainant's complaint for investigation and

upon completion of the investigation, complainant was informed of his

right to request a hearing before an EEOC Administrative Judge (AJ).

Complainant requested a hearing before an AJ.

On December 4, 1999, the AJ issued an �Acknowledgment Order and Order

Regarding Discovery and Summary Judgment.� The Order stated in pertinent

part:

IT IS HEREBY ORDERED that the parties follow the procedures set forth in

this Order. Failure to comply with this Order may result in sanctions,

including dismissal or a decision in favor of the opposing party.

The Order also contained a Notice Regarding Summary Judgment which stated:

After a review of the record, I have determined that matters in this

complaint may not be in material dispute and I am considering issuing

findings and conclusions without holding a hearing (summary judgment).

The Order elsewhere provided:

I hereby ORDER the parties to respond to this Notice within 15 days of the

close of discovery. After reviewing the parties' responses and examining

the record, I will determine whether summary judgment is appropriate.

The absence of a response from a party will not necessarily preclude me

from issuing a summary judgment decision in that party's favor.

The record shows that complainant contacted the AJ on May 7, 1999,

to inquire about the status of his case and to request an extension of

time to provide arguments regarding summary judgment.

In response to complainant's May 7, 1999 letter, the AJ issued an Order on

May 20, 1999, denying complainant's request for an extension of time to

submit arguments regarding summary judgment. The AJ noted that neither

party had responded to the December 4, 1998 Notice Regarding Summary

Judgment and stated that no extensions of time would be granted. The AJ

stated that a decision regarding summary judgment would be forthcoming.

By recommended decision issued September 3, 1999, the AJ dismissed

complainant's complaint for failure to prosecute. The AJ noted that

responses to the Notice Regarding Summary Judgment were due by March

4, 1999, and stated that because complainant failed to respond to the

Notice, his complaint would be dismissed for failure to cooperate.

The agency issued a final decision on December 10, 1999, implementing

the AJ's Recommended Decision dismissing complainant's complaint for

failure to cooperate.

Upon review of the record, we find that the AJ improperly recommended

dismissal for failure to cooperate. First, the Acknowledgment Order and

Order Regarding Discovery and Summary Judgment does not make clear that

a complainant must file a motion for summary judgment or an opposition

brief to the AJ's proposed issuance of summary judgment. Rather, the

language might have been construed as merely providing notice of the

applicable time limits should a party decide to file such a motion or

opposition brief. Second, even if the Acknowledgment Order had expressly

advised the parties that they were required to file a motion for summary

judgment, such failure by complainant can not be the basis of a dismissal

for failure to cooperate. We note, however, that nothing precludes the

AJ from issuing a summary judgment decision, if the material facts are

not in genuine dispute and there is no genuine issue as to credibility.

See 29 C.F.R. � 1614.109(g).

Accordingly, the agency's decision to dismiss complainant's complaint

was improper and is REVERSED and the complaint is REMANDED for further

processing in accordance with the Order below.

ORDER

The agency shall request that the Hearings Unit of the appropriate EEOC

District Office schedule a hearing. The agency is directed to submit

a copy of the complaint file to the EEOC District Office within 15

calendar days of the date this decision becomes final for a decision

from an Administrative Judge in accordance with 29 C.F.R. � 1614.109.

The agency shall provide written notification to the Compliance Officer at

the address set forth below that the complaint file has been transmitted

to the EEOC District Office. After receiving a decision from the EEOC

Administrative Judge, the agency shall issue a decision in accordance

with 29 C.F.R. � 1614.110.

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

October 24, 2001

__________________

Date