01A14837_r
04-17-2002
Challis Broughton, Complainant, v. Spencer Abraham, Secretary, Department of Energy, Agency.
Challis Broughton v. Department of Energy
01A14837
April 17, 2002
.
Challis Broughton,
Complainant,
v.
Spencer Abraham,
Secretary,
Department of Energy,
Agency.
Appeal No. 01A14837
Agency No. 96(150)OR
Hearing No. 250-AO-8134X
DECISION
Complainant filed a timely appeal with this Commission from an
agency's final action dismissing his complaint of unlawful employment
discrimination. In his complaint, complainant alleged that he was
subjected to discrimination on the bases of national origin (Native
American), sex (male), and in reprisal for prior EEO activity when the
following actions were taken against him:
Physical and administrative constraints were imposed upon him because
of alleged threats of violence against his ex-wife;
Since May 9, 1996, management has tried to dilute the extent of their
inappropriate actions;
Since May 9, 1996, complainant has been ridiculed because of his Native
American heritage and beliefs;
Oak Ridge Operations Office (ORO) managers violated complainant's Privacy
Act by retaining personal information which they had agreed to destroy;
ORO managers violated complainant's civil rights by not supplying a
performance plan between 1/1/96 and 7/29/99;
ORO supervisors retaliated against complainant by:
Having significant and highly visible work assignments taken from him.
Ridiculing his religious beliefs and practices.
Threatening him with disciplinary actions including termination of
employment.
Ignoring or �pigeon holing� him.
Disrespecting him.
Creating a hostile work environment for him by influencing his co-workers
to take sides against him.
On December 15, 1999, complainant requested a hearing before an EEOC
Administrative Judge (AJ).
On July 3, 2001, the AJ issued a Decision of Dismissal, dismissing
complainant's complaint for failure to prosecute. The AJ noted that
complainant requested a continuance in approximately April 2001 stating
that he began taking a medicine which effected his ability to concentrate.
Complainant stated that he anticipated surgery in six to eight months
to correct the problem, however, he was unsure how much time he needed
to proceed with his case. The AJ noted that the events raised in
complainant's complaint occurred in 1996 and that complainant took a
voluntary buyout from the agency in 2000. The AJ informed complainant
that with the exception of his claim for compensatory damages most of the
issues he raised were now moot. The AJ suggested that complainant be
allowed to supplement the record and then a decision be issued without
a hearing. Complainant accepted this alternative, but also stated that
he wanted to keep his options open.
The AJ allowed the parties to prepare for the hearing and held a
final telephone conference on May 21, 2001, at which time complainant
stated that he wanted to go forward with the hearing. At this time,
complainant stated that he was seeing his doctor on May 24 and the AJ
instructed him to ask his doctor whether he could function at the hearing.
Complainant did not respond to the AJ until 5:00 p.m. on May 28, 2001,
Memorial Day. The AJ had already flown to Knoxville, Tennessee for the
hearing scheduled for May 29, 2001. Complainant appeared at the hearing
on May 29, 2001. At the hearing, complainant stated that he did not
have his material with him, that he was unable to proceed, and that he
had failed to ask his doctor whether he was able to go forward with the
hearing. The AJ issued a Notice of Proposed Dismissal on May 31, 2001.
The Notice directed complainant to file a response on or before June 20,
2001, stating the reasons why the complaint should not be dismissed for
failure to proceed with the hearing. Complainant did not respond and
the AJ dismissed the complaint for failure to proceed with the hearing.
The agency's final action implemented the AJ's decision, dismissing
the complaint for failure to cooperate. The agency noted the initial
one-month continuance sought by complainant and the second request for
a continuance, the evening before the hearing was scheduled to begin.
In addition, the agency noted that complainant failed to contact his
doctor to find out whether he was well enough to proceed with the hearing.
Alternatively, the agency dismissed complainant's complaint pursuant to
29 C.F.R. � 1614.107(a)(5), on the grounds of mootness.
On appeal, complainant states that he did file a response to the AJ's
Notice of Proposed Dismissal. Complainant requests that the agency
address the merits of his case or that the case be remanded to the AJ
for the hearing to resume.
Initially, we note that an AJ may not dismiss a complaints pursuant
to 29 C.F.R. � 1614.107(a)(7) for failure to prosecute, but rather
an AJ may dismiss a complaint as a sanction for failure to cooperate
pursuant to the provisions of 29 C.F.R. � 1614.109(f)(3). See Hale
v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000).
The sanctions available to an AJ for failure to provide requested
relevant information 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, or issuance
of a decision fully or partially in favor of the opposing party. Id.
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. 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. Department of Transportation, EEOC Appeal No. 01870232 (March 4, 1988).
In this case, the AJ dismissed the present complaint due to complainant's
failure to proceed with the hearing. On appeal, complainant claims that
he did respond to the Notice of Proposed Dismissal, but we find that the
record fails to reflect submission of any statement by the complainant.
Furthermore, we note that complainant failed to submit on appeal a copy
of his purported response to the Notice of Proposed Dismissal. We find
that the record confirms the AJ's conclusion that complainant failed to
proceed with the hearing, failed to respond to the Notice of Proposed
Dismissal, and failed to provide any credible reason for these failures.
In the present case, the record reveals that the AJ sent complainant a
Notice of Proposed Dismissal asking him to explain why his complaint
should not be dismissed for failure to proceed with the hearing and
informing him that failure to respond within fifteen (15) days would
result in the dismissal of his complaint. The record further reveals
that complainant failed to respond to the notice. Complainant did not
proffer any explanation for his failure to proceed with the hearing
or to respond to the AJ's notice. In the instant circumstances,
where the AJ had expended time and money to travel to a hearing at
which complainant refused to participate in and for which he failed to
provide any explanation for his refusal to participate, we find that
the AJ properly dismissed the complaint as a sanction pursuant to 29
C.F.R. � 1614.109(f)(3)(iv).
Accordingly, the agency's decision to fully implement the AJ's dismissal
decision was proper and 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
April 17, 2002
__________________
Date