01A02959_r
09-16-2002
Dorann M. Richardson, Complainant, v. Tommy G. Thompson, Secretary, Department of Health and Human Services, Agency.
Dorann M. Richardson v. Department of Health and Human Services
01A02959
September 16, 2002
.
Dorann M. Richardson,
Complainant,
v.
Tommy G. Thompson,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 01A02959
Agency Nos. CDCNCHSTP005-98, CDCNCHSTP037-98
Hearing Nos. 210-99-6626X, 210-99-6627X
DECISION
Complainant filed an appeal with this Commission from a decision
dismissing her complaints 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.
In her complaints dated November 3, 1997, and July 23, 1998, complainant
alleged that she was subjected to discrimination on the bases of race
and in reprisal for prior protected activity when:
On August 7, 1997, she received a written reprimand and was continuously
harassed by agency officials;
On March 5, 1998, she received a low performance rating;
On March 20, 1998, her request for advance sick leave was denied; and
On April 15, 1998, and May 30, 1998, she received her earnings and leave
statement which indicated that she was charged AWOL.
The agency investigated complainant's claims and issued a Report of
Investigation dated May 4, 1999. On August 13, 1999, complainant
requested a hearing before an EEOC Administrative Judge. Thereafter,
a Scheduling Order, which also included a Standing Order, pre-hearing
and hearing dates, and a copy of EEOC Regulation 29 C.F.R. � 1614.109
was issued on November 5, 1999, by the AJ assigned to hear this matter.
The record indicates that complainant retained counsel to represent
her on November 23, 1999.
On January 10, 2000, the agency filed a Motion to Dismiss for
complainant's failure to file pre-hearing submissions in compliance with
the AJ's November 5, 1999 Order. On December 20, 1999, an Order to Show
Cause was issued directing that on or before close of business, Monday,
January 3, 2000, complainant show good cause why sanctions (including
the dismissal of her complaint) should not issue against her for failure
to comply with the Order issued in this matter on November 5, 1999.
The Show Cause Order notified complainant that, absent a showing of good
cause for failure to comply with the Orders and to appear or be present
for the scheduled pre-hearing conference, the matter would be dismissed.
The record indicates that complainant and her attorney failed to appear
at the pre-hearing conference scheduled for January 5, 2000. The record
further indicates that other than requesting an extension of time in which
to respond to discovery, complainant failed to comply with the Scheduling
Order in any manner. Subsequently, on February 8, 2000, the AJ issued
an Order dismissing complainant's complaint for failure to comply with
Orders issued in this matter. Specifically, the AJ found that complainant
failed to show good cause for repeated delays and failure to comply with
Orders issued herein. Pursuant to EEOC Regulation 29 C.F.R. � 1614.109,
the AJ dismissed the instant matter with prejudice. Complainant was
advised that she may not again, request a hearing in this matter.
Complainant filed an appeal from the AJ's dismissal. Therein,
complainant's attorney asserts that the AJ's February 8, 2000 dismissal
constituted an abuse of discretion and as such, argues that the dismissal
should be reversed and the AJ ordered to issue a new scheduling order.
As a threshold matter, the Commission notes that there is no evidence that
the agency issued a final action within forty days of its receipt of the
AJ's decision. The Commission therefore determines that the AJ's decision
is the final action of the agency. See 29 C.F.R. � 1614.109 (i).
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).
Upon review, the Commission determines that complainant's actions
in this case do not rise to the level of contumacious conduct. The
Commission finds that the AJ's sanction to dismiss the complaint was
improper. Therefore, we find that instead of dismissing complainant's
complaint, the AJ should have remanded the case to the agency for
issuance of a final decision on the merits based on the information
contained in the record. Therefore, we shall remand the matter to the
agency for issuance of a final decision pursuant to 29 C.F.R. � 1614.110.
Accordingly, the agency's decision is REVERSED. The complaint is REMANDED
to the agency for further processing in accordance with the ORDER below.
ORDER
Within sixty (60) calendar days of the date that this decision becomes
final, is ordered to take final action in accordance with 29 C.F.R.
� 1614.110(b). A copy of the agency's final decision must be sent to
the Compliance Officer as referenced below.
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 16, 2002
__________________
Date