01A34593
11-24-2004
Estate of Brenda E. Shawe, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Estate of Brenda E. Shawe v. Department of the Army
01A34593
November 24, 2004
.
Estate of Brenda E. Shawe,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A34593
Hearing No. 100-99-1860X
Agency No. BEFLFO9609G0180 and GEFLFO9807I0190
DECISION
Complainant's Attorney filed a timely appeal with this Commission
from the dismissal of complainant's 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., Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. , and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Complainant filed two EEO complaints alleging discrimination: (1) on
the basis of age when her supervisor subjected complainant to verbal
abuse with frequent loud remarks about her performance in front of her
co-workers and (2) on the bases of age, race (Caucasian), sex (female),
color (white), disability (stress), and reprisal (prior EEO activity) when
on May 12, 1998, the supervisor physically assaulted complainant during
a meeting. The matters were consolidated by the agency. Complainant
requested a hearing before an EEOC Administrative Judge (AJ) who issued
a decision without a hearing. The agency's final decision implemented
the AJ's decision. Complainant appealed the decision to the Commission
and in Appeal No. 01A00633 (September 19, 2002), the agency's decision
was reversed. The agency was ordered to submit the matter for a hearing.
In December 2002, complainant died. On April 17, 2003, the AJ assigned
to the matter issued a scheduling order and set a hearing date for July
29, 2003. During the conference call with the parties, the AJ asked
complainant's attorney to contact complainant's estate and determine
whether they wished to pursue the matter. The AJ also indicated
that she would not place the matter in abeyance pending the outcome
of the discussion with complainant's estate. The AJ did not hear from
complainant's attorney. On May 19, 2003, the AJ issued an order requiring
complainant's counsel to determine within 11 days if the estate wanted
to proceed. The order contained a warning that failure to fully comply
may result in dismissal of the matter for failure to prosecute pursuant
to 29 C.F.R. � 1614.109(f)(3). On May 30, 2003, complainant's counsel
moved for a 30-day extension. The agency opposed the motion on June 2,
2003. Because the AJ was out of the office, complainant's attorney was
granted a de facto extension. On June 24, 2003, the attorney requested
additional time until July 25, 2003, citing a full box of documents that
needed to be reviewed. The AJ denied complainant's attorney's motion.
The AJ noted that complainant's attorney had handled the matter for
years and had ample opportunity to determine the estate's wishes prior to
this point but had failed to do so. Accordingly, the AJ dismissed the
matter pursuant to 29 C.F.R. � 1614.109(f)(3). Forty days lapsed since
the AJ issued the dismissal and the agency did not issue its decision.
As a result, because of the agency's inaction, the AJ's decision became
the agency's final order by operation of law. 29 C.F.R. � 1614.109(i);
MD-110, at 9-3.
Complainant's attorney appealed the AJ's dismissal arguing that
his conduct did not amount to contumacious conduct or other willful
misconduct. He asserted that the AJ's dismissal was inappropriate.
We find that complainant's attorney was made aware of the AJ's request
shortly after April 17, 2003, and did not contact the AJ until May 30,
2003, when he requested more time to consult with complainant's estate.
Even after being granted a de facto extension, complainant's attorney
still could not provide the AJ with a response from the complainant's
estate. The AJ provided complainant's attorney with adequate warning
that failure to comply could result in dismissal. See Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
7-7, note 4 (November 9, 1999). The attorney provided no good cause
for any additional time and did not provide the information requested
for over two months. Therefore, upon review, the Commission finds
that the AJ properly dismissed the complaints pursuant to 29 C.F.R. �
1614.109(f)(3)(v).
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
November 24, 2004
__________________
Date