01A11126_r
06-05-2002
David F. Martino, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
David F. Martino v. Department of Veterans Affairs
01A11126
June 5, 2002
.
David F. Martino,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A11126
Agency No. 98-4779
Hearing No. 170-A0-8392X
DECISION
Complainant filed an appeal with this Commission from a final agency
action pertaining to 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. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
Believing that he was the victim of discrimination based on religion,
national origin and age, complainant contacted the EEO office.
Informal efforts to resolve complainant's concerns were unsuccessful.
On March 19, 1999, complainant filed a formal complaint. Therein,
complainant claim that he was discriminated against on December 14, 1998,
when he learned he was not promoted/selected for the Program Leader
Position that was announced on August 24, 1998. The agency conducted
an investigation, provided complainant with a copy of the investigative
report, and advised complainant of his right to request either a hearing
before an EEOC Administrative Judge (AJ) or an immediate final agency
decision. Complainant requested a hearing before an AJ.
The AJ issued an Acknowledgment of complainant's request for a hearing on
June 6, 2000. The agency submitted a Motion to Compel on July 27, 2000.
In its motion, the agency argued that complainant failed to respond to
its discovery requests within thirty (30) days from the date of receipt
of the request. On August 3, 2000, the AJ issued a Scheduling Order.
In the Order, the AJ stated that complainant and the agency must each
submit, within fifteen (15) days of receipt of this Order, a document,
entitled �Prehearing Statement.� In the same Order, the AJ scheduled a
prehearing conference for October 13, 2000, and a hearing for November 16,
2000. In an Order dated August 22, 2000, the AJ required complainant to
respond to the agency's request for production and interrogatories within
fifteen (15) days. In the same order, the AJ granted the agency's Motion
to Compel. The record indicates that complainant submitted an untitled
and undated document to the AJ on August 22, 2000. By Order dated August
23, 2000, the AJ stated that she received complainant's untitled and
undated document on August 22, 2000. The AJ stated that the document
appeared to be complainant's response to the agency's interrogatories
and that complainant failed to submit certification or any indication
that he provided a copy of this document to the agency representative.
By Order to Show Cause dated September 12, 2000, the AJ ordered
complainant to show cause why his complaint should not be dismissed as a
sanction for failure to respond to an Order of the AJ. On September 14,
2000, the agency submitted its Motion to Impose Sanctions. The agency
noted therein that by facsimile on September 14, 2000, complainant
submitted to the agency his partial response to its interrogatories;
but that complainant did not answer some interrogatories and did not
produce any requested documents.
By Order dated September 20, 2000, the AJ granted the agency's Motion to
Impose Sanctions dated September 14, 2000, against complainant for failure
to comply with the AJ's orders. Complainant requested a continuance in
his case two times. The AJ granted complainant's first request for
a continuance, but denied complainant's second request. The record
shows that complainant timely submitted a response to the Order to
Show Cause why the instant matter should not be dismissed because of
his failure to comply with Scheduling Order issued on August 3, 2000.
The AJ concluded that the reasons complainant gave for noncompliance
were not for good cause. The record shows that although the agency
requested dismissal for complainant's failure to comply with the order,
the AJ gave complainant one more opportunity to comply with the scheduling
order and scheduled a prehearing conference for October 13, 2000.
By facsimile on October 13, 2000, complainant requested that the
prehearing conference be postponed due to an illness. The AJ left a
message on complainant's answering machine stating that complainant's
request for postponement of the prehearing conference was denied
and directing complainant to telephone the agency representative by
3:00 p.m. on this date if he intended to participate in the prehearing
conference. Complainant failed to respond to the AJ's message. The AJ,
on October 13, 2000, ordered complainant to show cause why he failed to
appear at a scheduled prehearing conference. The order gave complainant
ten days after receipt of the Order to respond. Complainant failed to
respond to the AJ's Order.
On October 31, 2000, the AJ dismissed complainant's complaint for failure
to respond to the AJ's Order to Show Cause. By decision dated November
20, 2000, the agency implemented the AJ's decision.
Complainant raised no new contentions on appeal. The agency requests
that the Commission affirm its final action.
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
information include an adverse inference that the requested information
would have reflected unfavorably on 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 complaint 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).
After careful review of the record, we find that complainant was provided
with notice that he risked dismissal as a sanction for failure to comply
with the AJ's Orders. On appeal, we find that complainant provided no
persuasive arguments or evidence to justify his complete disregard of
the administrative process. Under these circumstances, 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
June 5, 2002
__________________
Date