01A14223_r
06-03-2002
Ira Maclin, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Ira Maclin v. Department of Veterans Affairs
01A14223
June 3, 2002
.
Ira Maclin,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A14223
Agency Nos. 99-3369
99-4021
2001-789
2001-2243
Hearing Nos. 110-A0-8261X
110-A1-8153X
110-A1-8154X
110-A1-8318X
DECISION
Complainant filed a timely appeal with this Commission from an agency
final action dated June 19, 2001, dismissing the captioned complaints.
The Commission accepts the appeal. 29 C.F.R. � 1614.405.
Review of the record reflects that the agency investigated the captioned
complaints, and forwarded the record to an EEOC Administrative Judge
(AJ) to schedule a hearing. In a Dismissal Order dated May 29, 2001,
the AJ dismissed the captioned complaints as a sanction pursuant to
29 C.F.R. � 1614.109(f)(3). The AJ determined that this sanction was
warranted due to complainant's disregard of all pre-hearing Orders,
as well as his late and inadequate response to the agency's discovery
request. The agency's final action accepted and implemented the AJ's
Dismissal Order, finding that the AJ properly dismissed the complaints
on the procedural grounds of failure to cooperate.
On appeal, complainant contends that both of his union representatives
suddenly refused to further represent him in February 2001, and that
he represented himself at the May 7, 2001 pre-hearing conference.
Complainant additionally asserts that he prepared his discovery response
to the best of his ability, and that he informed the AJ that he was
doing his best to comply.
EEOC Regulation 29 C.F.R. � 1614.109(f)(3) provides that an AJ has the
authority to sanction a party for failure without good cause shown to
fully comply with an order. However, 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 Hale v. Department of Justice, EEOC Appeals No. 01A03341 (December
8, 2000).
According to the record, the agency's first discovery request was
submitted to complainant on January 30, 2001. The request was divided
into three parts: interrogatories, request for production of documents,
and request for admissions. When complainant failed to respond, the
agency submitted a motion to compel discovery on March 9, 2001, and the
AJ issued an Order Compelling Discovery on March 23, 2001. After again
receiving no response, on April 11, 2001, the agency submitted a motion
requesting sanctions. On April 23, 2001, the complainant submitted a
witness list to the agency. However, finding this response completely
inadequate, the agency renewed its motion for sanctions on that same
date, as well as again on May 14, 2001. On May 15, 2001, complainant
submitted a response to the agency's discovery request, providing brief
answers to each of the three parts referenced above.
Upon review, the Commission finds that complainant's clearly insufficient
participation in the pre-hearing process, as described herein, does
not rise to the level of contumacious conduct. Instead, we find that
complainant's inadequate responses are the result of his lack of expertise
and understanding of the EEO/pre-hearing process, compounded by the sudden
departure of his representative, whom complainant then failed to promptly
replace. Moreover, we find that complainant communicated his lack of
understanding and expertise to the AJ, as well as his desire to continue
in the hearing process. Therefore, in light of these communications, and
in light of complainant's appearance at the May 2001 hearing conference,
as well as the submission of his discovery responses, albeit late and
inadequate for their intended purpose, the Commission finds insufficient
evidence to demonstrate contumacious conduct. Accordingly, we find that
the AJ's sanction to dismiss the complaint was improper. Instead, based
on this record, the Commission finds that the AJ should have cancelled
the hearing and remanded the complaint to the agency for issuance of a
decision on the merits.
Accordingly, the agency's final action is REVERSED. The complaint is
REMANDED for further processing in accordance with the Order below.
ORDER
The agency, within sixty (60) calendar days of the date 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
June 3, 2002
__________________
Date