0120130557
05-03-2013
Francesca Alcindor, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Francesca Alcindor,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120130557
Hearing No. 510-2012-00154X
Agency No. 2011-23816-FAA-03
DECISION
On November 20, 2012, Complainant filed an appeal with this Commission from the Agency's decision dated October 17, 2012, dismissing her 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 Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final order, and REMANDS the complaint for further action.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Air Traffic Control Specialist at the Agency's facility in Miami, Florida. On August 12, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American) and sex (female) when she was subjected to unfavorable training conditions. Specifically:
a. from November 2010, Complainant's training program consisted of many instances of bullying and harassment and did not afford her the same opportunity to succeed as was provided to others;
b. on January 27, 2011, Complainant's training at the Miami (MIA) Air Traffic Control Tower (ATCT) facility was terminated;
c. on February 24, 2011, Complainant's request to be recycled through the tower simulation phase of Complainant's training was denied; and
d. as a result of the termination of Complainant's training, on April 8, 2011, Complainant was forced to accept a position downgrade and reassignment (effective May 8, 2011), and relocate at Complainant's own expense to another facility.
At the conclusion of the investigation, Complainant received a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). In a decision dated September 28, 2012, the AJ issued a Dismissal Order, finding that Complainant had failed to respond to the AJ's Response to Agency's Motion/Order to Comply, issued on September 5, 2012. In that Order, the AJ had granted the Agency's unopposed Motion to Compel, which sought to compel Complainant to respond to the Agency's discovery requests, which had been served on Complainant on March 1, 2012. Complainant was also ordered to provide the AJ and the Agency with written verification of a current mailing address at which she could be reached. Complaint was advised of the possibility that sanctions could be issued for failure to comply with the AJ's Order. Complainant did not reply to the Order, either to the Agency or the AJ; in addition, the Order sent to Complainant was returned to the AJ marked as "undeliverable."
The AJ found that Complainant failed to comply with the AJ's February 10, 2012, Acknowledgment and Order which required her to cooperate in the processing of her case, and the AJ's September 5, 2012, Response to Agency's Motion/Order to Comply which directed her to comply with discovery and required her to provide current contact information. The AJ also found that Complainant did not provide good cause to the AJ to explain her failure to do so. The AJ issued the Dismissal Order dismissing Complainant's hearing request, and remanding the complaint to the Agency, for the issuance of a final action in accordance with 29 C.F.R. � 1614.110(b).
The Agency's final decision dated October 17, 2012, indicated that the Agency would fully implement the AJ's decision, but it did not issue any decision which then analyzed the merits of Complainant's complaint. Complainant thereafter filed the instant appeal.
CONTENTIONS ON APPEAL
Complainant argued on appeal that her hearing request should not have been dismissed because she was doing the best job that she could to keep the Agency and the AJ updated with her address, but she had moved 9 times in 17 months and was experiencing health issues. She claimed that she did not always receive documents sent to her, due to hospitalizations and an inability to collect her mail. The Agency did not submit any argument in opposition to Complainant's appeal.
ANALYSIS AND FINDINGS
The AJ issued a dismissal of Complainant's hearing request as a sanction in this case. Complainant does not dispute that she failed to respond to the Agency's discovery requests or to the AJ's Order to Comply issued on September 5, 2012. 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); EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 7, 9-10 (1999). However, such 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. Dep't of Transportation, EEOC Appeal No. 01870232 (March 4, 1988).
In the present case, Complainant failed to comply with the AJ's February 10, 2012, Acknowledgment and Order, requiring her to cooperate in the processing of her case, and to respond to and comply with the AJ's September 5, 2012, Response to Agency's Motion/Order to Comply, directing her to comply with discovery and requiring her to provide current contact information. She has failed to provide good cause for her failure to do so. Although she argued that she had moved repeatedly in a relatively short period of time, we find that she has not shown that incapable of remaining current with her obligations in the hearings process. Therefore, while we agree that Complainant's conduct warrants a sanction, we do not find that her conduct rose to the level of contumacious conduct. It is well-settled that when we find that a complainant has not cooperated in the hearings process, absent a finding of contumacious conduct, the appropriate sanction is to dismiss the hearing request, and remand the complaint to the Agency to issue a final agency decision on the record. See Cole v. Dep't of the Navy, EEOC Appeal No. 01A42577 (Feb. 16, 2005); Bates v. Dep't of Veterans Affairs, EEOC Appeal No. 0120063654 (Nov. 30, 2007); Byers v. Dep't of Homeland Security, EEOC Appeal No. 0120082542 (Nov. 7, 2008); Kunz v. Dep't of Agriculture, EEOC Appeal No. 01A22023 (Sept. 25, 2002), request for recon. denied, EEOC Request No. 05A30132 (Jan. 23, 2003).
The AJ's Dismissal Order instructed the Agency to proceed with processing the complaint in accordance with our regulations at 29 C.F.R. � 1614.110(b). The Agency, however, implemented the AJ's decision dismissing the hearing request without addressing the underlying issues of Complainant's complaint. We find this to have been error on the part of the Agency. Given that the Agency conducted a full investigation of the complaint, we find that the complaint should be returned to the Agency to issue a final decision on the merits, based on the existing record. We find that the record as it was developed in the investigative process is sufficient upon which to base a decision. Therefore, we shall remand the matter so that the Agency may issue a decision in accordance with 29 C.F.R. � 1614.110(b).
CONCLUSION
The agency's decision dismissing the complaint is REVERSED. The complaint is REMANDED to the Agency for further processing in accordance with this decision and the Order herein.
ORDER
Within sixty (60) calendar days from the date this decision becomes final, the Agency shall issue a final decision on the complaint 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 3, 2013
Date
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0120130557
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120130557