01A05543
08-12-2002
Betty J. Hooker, Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.
Betty J. Hooker v. Department of Defense,
(Defense Commissary Agency),
01A05543
August 12, 2002
.
Betty J. Hooker,
Complainant,
v.
Donald H. Rumsfeld,
Secretary,
Department of Defense,
(Defense Commissary Agency),
Agency.
Appeal No. 01A05543
Agency No. 99-DCW13U-033
DECISION
The complainant filed a timely appeal with this Commission from the
agency's decision dated July 19, 2000, concerning 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.
At the conclusion of the investigation, the complainant requested a
hearing before an EEOC Administrative Judge (AJ). On March 10, 2000,
the AJ issued a Notice that she was considering issuing a decision without
holding a hearing and giving the complainant the opportunity to respond.
The AJ specifically stated in that notice that, if the complainant did
not submit a timely written response, she would dismiss her complaint
pursuant to 29 C.F.R. �1614.109(b), without further notice. The response
was due (postmarked) by April 3, 2000.
In an Order dated April 19, 2000, the AJ recounted the above. The AJ
stated that, since she had not received a response from the complainant or
her attorney, the case was dismissed pursuant to 29 C.F.R. �1614.109(b).
The AJ also added in a footnote that, even if this case was to be
considered on the merits, summary judgment was warranted for the
reasons stated in her Notice. Specifically, the AJ commented that
the record reveals that the complainant cannot establish a prima facie
case of discrimination as a matter of law because the actions alleged,
statements by a staff trainer, do not constitute a tangible adverse
employment action and do not rise to the level of actionable harassment.
Thereafter the agency issued a final decision, 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 relied on the complainant's failure to respond to a
notice of the AJ's consideration of the issuance of a decision without
holding a hearing, i.e., summary judgment. This is not the type of
conduct which an AJ should sanction. Thus, the AJ's dismissal due to
complainant's failure to respond was not appropriate.
Nonetheless, the Commission declines to remand the matter for further
processing. Rather it notes that, as stated in the footnote, the AJ
properly determined that remarks made by the staff trainer at Cultural
Sensitivity Awareness Session, albeit insensitive, do not render
complainant aggrieved, nor do they raise to the level of actionable
harassment. As such, the agency's final decision is affirmed.
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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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
August 12, 2002
__________________
Date