0120063593
03-02-2007
Sylvia I. Craig, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Sylvia I. Craig,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01200635931
Hearing No. 310-2003-05560X
Agency No. 5-01-50772
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 23, 2006, dismissing her 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 June 2001, complainant filed a formal EEO complaint alleging
that the agency subjected her to discrimination on the bases of sex
(female), age (over 40), and reprisal for prior protected EEO activity
when, from 1998 to 2001, the agency negatively effected her training.
In December 2001, complainant sought to amend her complaint to include
removal from a bid list, forced to accept transfer or termination, and
denied training opportunities. Following an agency investigation of
the matters, the agency informed complainant of her right to request a
hearing before an EEOC Administrative Judge (AJ) or an immediate final
decision by the agency. Complainant requested a hearing.
In an Order dated September 16, 2004, the AJ cancelled complainant's
hearing request and remanded her complaint to the agency for a final
decision. The AJ stated that complainant failed to provide information
she was directed to provide in a pre-hearing conference report, was
absent from the workplace on the day of the pre-hearing and neglected
to provide a contact number, and failed to follow directions regarding
a rescheduled pre-hearing conference. Subsequently, the agency issued
a final decision dismissing complainant's complaint for failure to
prosecute. The record shows that complainant's address of record,
a post office box, has remained the same during the administrative
process. Complainant filed the instant appeal. On appeal, complainant
stated that she was not asked to provide information for a pre-hearing
conference report, she was not informed of a pre-hearing conference and
her contact information had not changed at the applicable time, and she
was not informed of a rescheduled pre-hearing conference or of a need
to show cause. Summarily, complainant asserted that she was uninformed.
An AJ has the authority to sanction either party for failure to
fully comply with an order, without good cause shown. See 29 C.F.R. �
1614.109(f)(3); Hale v. Dep't of Justice, EEOC Appeal No. 01A03341
(December 8, 2000). These sanctions must be tailored in each case
to appropriately address the underlying conduct of the party being
sanctioned. 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. 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 Thomas v. Dep't of Transportation, EEOC Appeal
No. 01870232 (March 4, 1988).
The regulation set forth at 29 C.F.R. � 1614.107(a)(7), in pertinent part,
authorizes dismissal of a complaint where the complainant fails to respond
to a request for information within 15 days of its receipt, provided that
the request included a notice of the proposed dismissal. The regulation
further provides that, instead of dismissing for failure to cooperate,
the complaint may be adjudicated if sufficient information for that
purpose is available. The Commission has held that as a general rule, an
agency should not dismiss a complaint when it has sufficient information
on which to base an adjudication. See Ross v. U. S. Postal Service,
EEOC Request No. 05900693 (August 17, 1990). It is only in cases where
the complainant has engaged in delay or contumacious conduct and the
record is insufficient to permit adjudication that the Commission has
allowed a complaint to be dismissed for failure to cooperate. See Card
v. U. S. Postal Service, EEOC Request No. 05970095 (April 23, 1998).
The record indicates that complainant's address of record has remained
the same through the administrative process and the AJ stated that he
requested information and participation from complainant, in writing,
but she failed to respond or make herself available. Nonetheless,
complainant stated that she was unaware of the AJ's requests. Further,
the record reveals that the agency completed an investigation of the
complaint, and that the record should be sufficient to permit the agency
to issue a decision on the merits of the case. There is no evidence that
the complainant sought to delay or prevent processing of her complaint.
Under the circumstances, we find that an appropriate sanction in this
case would have been for the AJ to cancel complainant's hearing and remand
the case to the agency to issue a decision on the merits of the case. See
Reed v. U.S. Postal Service, EEOC Appeal No. 01A05039 (January 3, 2001).
We find such appropriate at this time and REVERSE the agency's dismissal
and REMAND the matter to the agency for further processing.
ORDER
The agency shall issue complainant a final agency decision on the merits
(addressing whether discrimination occurred) for the remanded claim(s)
within sixty (60) days of the date this decision becomes final. A copy
of the final decision on the merits, with all appropriate rights, 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
March 2, 2007
__________________
Date
1 Due to a new Commission data system, the instant case has been
redesignated with the above-referenced appeal number.
2 We note that the agency began processing the instant complaint when
the EEOC denied certification of a class complaint filed on behalf of
female air traffic controllers.
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0120063593
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120063593