01a32788
08-09-2005
Delores Owoh, Complainant, v. Dr. Francis J. Harvey, Secretary, Department of the Army, Agency.
Delores Owoh v. Department of the Army
01A32788
August 9, 2005
.
Delores Owoh,
Complainant,
v.
Dr. Francis J. Harvey,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A32788
Agency No. BHEMRE980210030
Hearing Nos. 280-A2-4078X, 280-A2-4103X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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.
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. For the
following reasons, the Commission AFFIRMS the agency's final order.
This is the second appeal in this case. The Commission's previous
decision<1> is incorporated by reference herein.
The record reveals that complainant, a Housing Counselor, NF-1176-02 at
the agency's Fort Riley, Kansas facility, filed a formal EEO complaint
on June 23, 1995, alleging that the agency had discriminated against
her on the bases of race (African-American) and reprisal for prior EEO
activity when: (1) her duty hours were reduced to two days per week;
(2) she received Memoranda for Record on May 8, 9, 13, and 15, 1995;
(3) her work schedule was changed without informing her of the changes
to create a false impression and record that she deliberately failed to
show up for work; (4) African-American employees were not informed of
job openings; (5) she was subjected to arbitrary and unlawful termination
of her employment based on a statement by a Caucasian without giving her
an opportunity to be heard; and (6) she was subjected to the arbitrary
and discriminatory administration and enforcement of the 2300-0700 hours
(shift) work rule.
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The original hearing date in this case, scheduled for October
1999 at Fort Riley, Kansas, was postponed due to a request by the AJ. The
record reveals that the hearing was rescheduled for February 16, 2000, but
was later canceled by complainant's attorney due to a scheduling conflict.
On February 15, 2000, a rescheduling conference was held to set a third
date for the hearing. Complainant's attorney, a resident of New Jersey,
engaged in a conference with the agency and the AJ regarding scheduling
a new date for the hearing; however, complainant, a resident of Georgia,
was not present during the rescheduling conference. At the conference,
the AJ proposed an April 10, 2000 hearing date. During the conference,
complainant's attorney stated that he would be unable to attend a hearing
scheduled for this date and proposed a hearing date after April 20, 2000.
The AJ issued an Order dated February 15, 2000, scheduling the hearing
for April 10, 2000 at Ft. Riley, Kansas, and noted that complainant's
attorney would not attend a hearing scheduled for this date.
On February 23, 2000, upon notification of the new hearing date,
complainant contacted the AJ and requested reconsideration of his decision
to schedule the hearing for a date when her attorney was unavailable.
Complainant stated if her request for reconsideration was denied, she
would be present at the April 10, 2000 hearing. The AJ issued a March 8,
2000 Order, denying the request. On March 15, 2000, complainant asked
for the address to file an interlocutory appeal of the AJ's decision
to schedule the hearing for April 10, 2000, and also requested that the
AJ recuse himself from the case. Complainant's counsel wrote the AJ on
March 18, 2000, stating that complainant intended to appeal the decision
to schedule the hearing on April 10, 2000, due to the fact that the
absence of counsel would deprive her of a �fair� and �impartial� hearing.
The AJ issued an Order on March 27, 2000, stating that he would not
recuse himself from this case. On March 28, 2000, complainant's attorney
requested reconsideration of the AJ's Order setting the hearing for April
10, 2000. The AJ issued an Order on March 31, 2000, denying the request
for reconsideration. By facsimile sent on April 3, 2000, complainant's
attorney again requested the AJ hold the hearing in abeyance pending
complainant's appeal of the March 27, 2000, and March 31, 2000 Orders.
The AJ issued an Order dated April 4, 2000, which treated the April 3,
3000 facsimile as a motion to stay and therein denied the motion.
The record reveals that on Friday, April 7, 2000, complainant's attorney
called the AJ at 6:27 a.m. and left a voice mail message indicating that
he was faxing four pages of material regarding �treatment of complainant�
and �a doctor's note.� Complainant's attorney faxed the AJ and the agency
a letter referencing �Notice of Complainant's Emergency Treatment.� The
letter stated that �due to a medical emergency, the Complainant will
not be able to travel to Fort Riley, Kansas for the hearing scheduled
for April 10, 2000.� The letter stated that complainant was treated
for musculoskeletal chest pain at the emergency department of Kennedy
Memorial Hospital and noted that the attending physician recommended that
complainant rest �as much as possible for at least one week.� Attached
to the facsimile, complainant's attorney sent three prescription blanks
from Physician A of the Emergency Department at Kennedy Memorial Hospital,
Stratford, New Jersey The three prescription blanks contain complainant's
name and are dated April 6, 2000. Two of the blanks contain prescriptions
for medicine and one blank states �no work for one week.� The agency
filed a motion to dismiss complainant's complaint on April 7, 2000,
for failure to prosecute.
The hearing commenced on Monday, April 10, 2000, without complainant or
her attorney present. The agency and the agency representative were
present at the hearing. The AJ noted that the agency's April 7, 2000
motion to dismiss was procedurally inaccurate and granted the agency
leave to refile a motion to dismiss complainant's complaint. On April
12, 2000, the AJ issued an Order to Show Cause to complainant and her
counsel to show �good cause� in writing within ten days of service why
the case should not be dismissed for reason of complainant's failure to
prosecute and for further reason of complainant's failure to attend the
hearing scheduled for April 10, 2000.
The Agency filed a motion to dismiss which was received by the AJ on
April 13, 2000. Complainant's counsel responded to the agency's motion to
dismiss via letter dated April 11, 2000 and complainant responded to the
Order to Show Cause via facsimile on April 13, 2000 (and also included
a copy of her attorney's April 11, 2000 letter). Both responses state
that complainant was unable to attend the April 10, 2000 hearing due to
complainant's medical circumstances. Complainant attached a copy of the
three prescription blanks for the Kennedy Memorial Hospital as well as a
copy of a receipt for a Greyhound Bus ticket in complainant's name for
travel from Camden, New Jersey to Junction City, Kansas for departure
on April 7, 2000 and arrival in Kansas 10:40 p.m. on April 8, 2000.
Complainant explained that she was experiencing severe chest pain which
was diagnosed as musculoskeletal chest pains at the Emergency Room of the
Kennedy Memorial Hospital. Complainant states that she was prescribed
medication and as a result of her medical situation was unable to take
the thirty-two-hour bus ride from New Jersey to Kansas for the hearing.
On June 27, 2000, the AJ issued a Decision and Order of Dismissal in
which he dismissed complainant's complaint pursuant to 29 C.F.R. �
1614.109(f)(3), for failure to prosecute and for failure to follow and
comply with Orders resultant from complainant's failure to attend the
April 10, 2000 hearing. The AJ acknowledged that he received a voice
mail message from complainant's attorney on April 7, 2000 as well as
the April 7, 2000 facsimile and the accompanying prescription blanks.
The AJ stated that the message he received did not �request a continuance,
stay or adjournment of the hearing for any reason; nor did the message
advise that Complainant would not be attending the hearing the following
Monday.� The AJ also found that although one of the prescription blanks
stated �no work for one week� it �did not in any way restrict or limit
Complainant from travel, nor did [Physician A] state that Complainant
should rest as much as possible for one week.� The AJ stated that
complainant's response to the Order to Show Cause did not constitute
good cause for her failure to attend the hearing. The AJ stated that
there were no �affidavits or verified statement from anyone� and he
noted that �[n]either [Physician A] nor anyone associated with Kennedy
Memorial Hospital provided any information to substantiate the conclusory
assertions of Complainant and her counsel.�
The agency took final action on July 31, 2000, adopting the AJ's Decision
and Order of Dismissal. Complainant appealed that decision to the
Commission in Owoh I. On appeal, complainant stated that her case was
improperly dismissed for failure to cooperate. Complainant reiterated
that she was unable to attend the hearing on April 10, 2000, due to
medical reasons. Complainant stated that she traveled from Atlanta to
New Jersey to consult with her attorney prior to the scheduled hearing.
Complainant stated that she bought a bus ticket to travel to the hearing
in Kansas. Complainant provided a receipt from Greyhound Lines showing
that she purchased a bus ticket for travel from Camden, New Jersey
departing on April 6, 2000 to arrive at Junction City, Kansas on April 8,
2000. The receipt showed that the ticket was purchased on April 5, 2000.
Complainant explained that she was rushed to the emergency departments
of Our Lady of Lourdes Medical Center and Kennedy Memorial Hospital for
severe chest pain and breathing problems. Complainant submitted copies of
her medical records from Our Lady of Lourdes Medical Center in New Jersey
dated April 6, 2000, and medical records from Kennedy Memorial Hospital
in New Jersey dated April 6-7, 2000, verifying her medical condition and
treatment. In addition, complainant submitted prescriptions blanks from
Our Lady of Lourdes Medical Center and Kennedy Memorial Hospital during
the relevant time frame. Complainant noted that the Emergency Doctor
prescribed two medications and restricted her from work for one week.
Complainant stated that based on her medical condition, she was unable
to travel for thirty-two hours on the bus from New Jersey to Kansas.
In its decision in Owoh I, the Commission found that the attorney's
telephone call constituted a request for a stay of the hearing, and that
complainant had shown good cause for her failure to appear by virtue of
medical incapacity. The Commission determined that the AJ had abused
his discretion by dismissing complainant's complaint for failure to
prosecute and for failure to comply with his �show cause� order.
On remand, by order dated March 14, 2002, the case was rescheduled for
a hearing to take place May 14, 2002, with continuation if necessary
on May 15 and 16, 2002. By letter dated April 12, 2002, complainant's
representative advised that he would not be available on those dates
and requested a new hearing date after June 27, 2002. A new hearing
date was set for July 23-25, 2002.
Although the nature of the claims to be heard was by this time
well-established, complainant's attorney repeatedly requested
clarification. By letter dated May 29, 2002, complainant's attorney
requested further discovery on complainant's retaliation claim, adding
new witnesses and requesting to depose others on the ground that the
retaliation claim was �newly accepted.� Although the retaliation claim
was not new, the AJ nonetheless granted the discovery request.
By order dated July 11, 2002, the AJ advised the parties that he would be
on detached duty (TDY) until the hearing, and that any further matters
would have to be raised in person on the hearing date. On July 12,
2002, however, complainant's attorney filed a motion for continuance.
Agency counsel learned of the motion from the EEOC District Office,
and faxed the motion to the AJ at his TDY location. The AJ denied the
motion for continuance, advising both parties by fax on July 18, 2002.
Complainant's representative requested reconsideration of the denial by
motion faxed to the EEOC District Office at 1:58 a.m. on July 19, 2002.
The motion was discovered by the AJ on Sunday morning, July 21, 2002.
The AJ immediately faxed an order denying reconsideration, and advising
the parties the hearing would proceed as scheduled on Tuesday, July
23, 2002. Complainant's attorney contacted the agency representative
by telephone at 7:45 p.m. on Monday, July 22, 2002, and advised her that
neither he nor complainant would appear for the hearing.
By decision dated February 11, 2003, the AJ found that �the inexcusable
failure of [c]omplainant's counsel to prosecute herein constitutes a
waiver of [c]omplainant's right to a hearing.�<2> The AJ directed
the agency to issue a final agency decision (FAD) on the merits of
the complaint. The AJ also granted the agency's motion for costs, and
ordered complainant's attorney to pay the agency $3,787.89 for the court
reporter, witness travel, and lost wages paid to witnesses.
By FAD dated March 3, 2003, the agency found no discrimination with
regard to all of complainant's claims. The agency noted that the AJ
had awarded it costs.
An AJ has the authority to sanction either party for failure without good
cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3)(v);
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, issuance of a decision fully or
partially in favor of the opposing party, or other actions as appropriate.
29 C.F.R. � 1614.109(f)(3)(v).
The Commission finds that the AJ acted within his sound discretion by
remanding complainant's complaint to the agency for an immediate FAD.
Throughout this case, excepting the instance in which complainant had
a legitimate medical reason for her failure to appear, complainant
and her attorney have engaged in a pattern of delay and obfuscation.
Despite the AJ's appropriate exercise of his responsibilities, his
continuous efforts to move the hearing process forward and the clarity
and precision of his orders, complainant and her attorney repeatedly
objected to all opportunities for holding a hearing. Even when given the
benefit of the doubt, as with the late request for additional discovery,
complainant's attorney has not pursued the opportunities to develop
this case further through the hearing process. When complainant and her
attorney failed to appear for the re-scheduled hearing, notwithstanding
the AJ's emphatic denial of further continuances, the AJ appropriately
concluded that complainant had waived her right a hearing, and remanded
the case for an FAD.
The Commission further finds, however, that the AJ did not act within his
sound discretion by awarding the agency costs to be paid by complainant's
attorney. Before sanctions are imposed, the Commission requires the AJ
to issue notice to the offending party that makes clear that sanctions
may be imposed and the type of sanction that could be imposed, unless the
party can show good cause for its failure to comply. Steen v. Department
of the Army, EEOC Appeal No. 07A20033 (June 3, 2003); EEOC Management
Directive 110 (MD-110), at 7-7, n.4.
Having reviewed the motions and orders which passed among the AJ and the
parties in the days leading up to the unsuccessful hearing attempt on
July 23, 2002, it is apparent that the AJ did not place complainant and
her representative on notice that a consequence of their failure to appear
could be the imposition of costs. It was therefore improper for the AJ to
grant the agency's motion for costs, and the FAD is modified accordingly.
Turning to the merits of complainant's complaint, in any proceeding,
either administrative or judicial, involving an allegation of
discrimination, it is the burden of the complainant to initially establish
that there is some substance to his or her allegation. In order to
accomplish this burden the complainant must establish a prima facie case
of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973); see also Furnco Construction Corp. v. Waters, 438 U.S. 567, 576
(1978). This means that the complainant must present a body of evidence
such that, were it not rebutted, the trier of fact could conclude that
unlawful discrimination did occur. The burden then shifts to the agency
to articulate a legitimate, non-discriminatory explanation for its action.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
In this regard, the agency need only produce evidence sufficient
�to allow the trier of fact rationally to conclude� that the agency's
action was not based on unlawful discrimination. Id. at 257. Once the
agency has articulated such a reason, the question becomes whether the
proffered explanation was the true reason for the agency's action, or
merely a pretext for discrimination. St. Mary's Honor Center v. Hicks,
509 U.S. 502, 511 (1993).
Assuming that complainant has established a prima facie case with
regard to each of her claims, the Commission finds that the agency
likewise has met its burden of explanation. With regard to work hours,
the agency explained that complainant's work hours were cut because of
deficient performance and unprofessional conduct. With regard to the
Memoranda for the record, these were issued to complainant to document
and notify her of performance deficiencies. Complainant's supervisor
communicated these matters to her in writing because when she attempted
to speak with complainant, complainant became angry and irrational.
With regard to schedule changes, the agency explained that complainant,
as were all employees, was notified of upcoming schedule changes either
in person or by message left in their mailboxes, and that complainant
had been so notified. With regard to job openings, the agency explained
that employees were responsible for monitoring job openings which might
interest them, and presented evidence that complainant was aware of the
location of job listings and had gone to view them on numerous occasions.
With regard to termination without being heard, the agency explained
that complainant was subject to the same termination process as other
employees, and was terminated on account of performance and conduct
deficiencies. With regard to the claim of unfair assignment to the
midnight shift, the agency explained that complainant was assigned
to the shift where she would have the least public contact because
complainant's difficulties with clients, and because the duties of the
midnight shift were the simplest to perform. Upon review of the record,
the Commission finds that complainant has submitted insufficient evidence
to establish pretext.
Based upon a thorough review of the record, and for the foregoing reasons,
it is the decision of the Commission to AFFIRM as modified the final
agency decision.
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 9, 2005
__________________
Date
1Delores Owoh v. Department of the Army (Owoh I), EEOC Appeal No. 01A05818
(December 28, 2001).
2The AJ rejected the attorney's argument that he did not receive the
AJ's order denying reconsideration in time to make travel arrangements,
noting that the attorney was well-aware via previous orders that the AJ
expected the hearing to go forward on July 23, 2002.