01990423_r
09-20-2001
Dawn Marie, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Dawn Marie v. Department of Transportation
01990423
September 20, 2001
.
Dawn Marie,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01990423
Agency No. DOT-6-95-0498
Hearing No. 210-98-6442X
DECISION
Complainant filed a timely appeal with this Commission from an October 2,
1998 agency final action dismissing her complaint of unlawful employment
discrimination brought pursuant to Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. � 2000e et seq. The Commission accepts the
appeal in accordance with 29 C.F.R. � 1614.405.
In her complaint, complainant claims discrimination on the bases of sex
and in reprisal for opposition of sexual harassment when on July 3, 1995,
the agency issued her a forty (40) hour suspension for mailing unsolicited
religious literature to the home of a co-worker who purportedly engaged
in acts of sexual harassment in the workplace.<1>
The agency investigated the complaint, and at complainant's request,
forwarded the complaint for a hearing before an EEOC Administrative
Judge (AJ). The record reveals that the case was transferred from the
EEOC's Seattle District Office to its Chicago District Office, and that
complainant requested, and was granted, abeyances and re-scheduling of
the hearing.
On October 7, 1997, the AJ issued a Scheduling Order, which gave the
parties twenty (20) days to submit the following:
1. Designation of Representative Form;
2. Detailed statement of facts, identifying accepted and disputed facts;
3. A list of witnesses and brief summary of testimony; and
4. A list of exhibits with an explanatory statement and index, along
with exhibits being identified by number and each page numbered.
Additionally, the AJ also ordered complainant to submit a detailed
statement of relief sought within fourteen (14) days, and further
directed complainant to provide an index for the 315 pages of documents
submitted in support of her formal complaint.
Next, pursuant to complainant's request to again withdraw the complaint
with prejudice<2>, over the objection of the agency, the AJ issued
an Order on December 15, 1997, granting the request. In this Order,
the AJ further indicates that she held a telephone conference with the
parties, and that the parties agreed to undertake certain actions as
a means of preserving the record until the time complainant reinstated
the hearing request. Accordingly, the AJ ordered the following:
1. Within thirty (30) days, both parties must comply fully with the
October 7, 1997 Order, enclosing a copy for reference;
2. Within thirty (30) days, complainant must provide an index for the
315 page complaint submission referenced in the October 7, 1997 Order; and
3. Within thirty (30) days, the agency must tab and index its record
to include item 2 above.
The AJ also gave the parties sixty (60) days to complete discovery, all
pre-hearing preparations, and any remaining actions in the October 7,
1997 Order.
On July 14, 1998, complainant requested reinstatement of the hearing.
By letter dated July 29, 1998, in pertinent part, the agency requested
that the AJ dismiss the complaint due to complainant's failure to comply
with either the October 7, 1997 Order or the December 15, 1997 Order.
The record reveals that the agency complied with both Orders.
On September 9, 1998, the AJ issued a Show Cause Order regarding
complainant's non-compliance with the two previous Orders. On September
24, 1998, after considering complainant's response, the AJ issued an
Order remanding the complaint to the agency recommending dismissal
for failure to prosecute. Specifically, the AJ found that complainant
repeatedly failed to comply with her Orders for up to (8) eight months,
and offered no reason to justify the non-compliance. Further, in the
Remand Order, the AJ rejected complainant's argument that the agency
failed to comply with previous Orders, finding that the agency had fully
and timely complied. The AJ also found that complainant's submission of
an index to the agency could not be construed as substantial compliance
with the previous Orders, and stated that the previous Orders provided
notice to both parties of the potential for complaint dismissal for
failure to comply.
In its final action, the agency adopted the AJ's recommendation, and
dismissed the instant complaint on the grounds of failure to prosecute.
The instant appeal followed.
An AJ may dismiss complaints pursuant to 29 C.F.R. 1614.107, on
his or her own initiative, after notice to the parties, or upon an
agency's motion to dismiss a complaint. See 29 C.F.R. 1614.109(b).
However, 29 C.F.R. 1614.107(a)(7), which permits the dismissal of a
complaint on the grounds of failure to prosecute, is only available
to an AJ as a sanction when the complainant fails to comply with an
agency request for relevant information. See Hale v. Department of
Justice, EEOC Appeal No. 01A03341 (December 8, 2000). In such cases,
an AJ must use the sanction provisions in 29 C.F.R. 1614.109(f)(3)
and the EEOC Management Directive 110, Chapter 7, pp. 9-10(1999).
Such sanctions may 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. But
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, we find that the AJ dismissed the instant complaint due to
complainant's ongoing failure to comply substantially with either her
October 7, 1997 or December 16, 1997 Orders. Complainant argues that
she did comply with the AJ's Orders. However, we find that the record
fails to reflect submission of the documents and statements referenced
in the Orders at issue. Furthermore, while we have carefully considered
complainant's arguments on appeal challenging the AJ's jurisdiction
and asserting that the Orders were vague and contained errors, causing
confusion, we find no support in the record for these claims. Instead,
we find that the record
confirms the AJ's conclusion that complainant consistently failed to
comply with any substantial aspect of her Orders, and failed to provide
any credible reason for this failure.
Therefore, given complainant's persistent and unexplained failure to
comply with the AJ's Orders, and in light of the agency's full and
timely compliance, we find that the AJ properly canceled the hearing.
However, we also find that the record in this case is fully developed and
contains sufficient evidence for the agency to render a decision on the
merits of the complaint. Therefore, we find that the AJ's dismissal
on the grounds of failure to prosecute, and the agency's adoption
of this decision, was improper, and that the AJ should have instead
remanded the complaint to the agency to render a decision on the merits.
See 29 C.F.R. � 1614.107(a)(7); Reed v. United States Postal Service,
EEOC Appeal No. 01A05039 (January 3, 2001).
Accordingly, for the reasons set forth above, we find that the agency
improperly dismissed the instant complaint, and we REVERSE that dismissal,
and REMAND the complaint to the agency to render a final decision on
the merits of the complaint pursuant to the ORDER below.
ORDER
Within sixty (60) calendar days from the date this decision becomes
final, the agency shall take final action in accordance with 29
C.F.R. 1614.110. A copy of the agency's final decision must be sent to
the Compliance Officer referenced herein.
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
September 20, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1During the investigation of the complaint, complainant withdrew the
following bases: race, color, religion and age.
2The AJ indicated that complainant had previously requested withdrawal
of the complaint