Linda Mudd, Complainant,v.Ann M. Veneman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionSep 24, 2002
01A22024_r (E.E.O.C. Sep. 24, 2002)

01A22024_r

09-24-2002

Linda Mudd, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.


Linda Mudd v. Department of Agriculture

01A22024

September 24, 2002

.

Linda Mudd,

Complainant,

v.

Ann M. Veneman,

Secretary,

Department of Agriculture,

Agency.

Appeal No. 01A22024

Agency No. 99-0614

Hearing No. 120-A1-4422X

Complainant filed an appeal with this Commission concerning 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as

amended, 29 U.S.C. � 621 et seq. In her complaint, complainant alleged

that she was subjected to discrimination on the bases of age, sex and

in reprisal for prior protected activity when a desk audit on November

24, 1998, did not result in an upgrade of complainant's position to the

GS-12 level.

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 AJ issued a decision without a hearing, dismissing

complainant's request for a hearing and remanding the complaint to the

agency for a final decision. The AJ's decision is dated December 20,

2001. The agency admits that it failed to issue a decision within 40

days of its receipt of the AJ's decision. Thus, pursuant to 29 C.F.R. �

1614.109(i), we find that the AJ's decision became the agency's final

order. It is from this final order that complainant now appeals.

The AJ found in the December 20, 2001 Order of Dismissal that complainant

failed to appear or respond as required by the AJ's orders. The AJ

stated that at a prehearing conference held October 26, 2001, complainant

was ordered to submit a prehearing statement on November 26, 2001.

The AJ found that complainant failed to submit the prehearing statement

on November 26, 2001. The AJ found that complainant was advised that

failure to comply with the prehearing conference memorandum dated October

31, 2001, may lead to sanctions. The AJ's found that complainant was

ordered to appear for a settlement conference on November 30, 2001.

The record shows that this conference was to be by telephone. The AJ

found that complainant failed to appear at the settlement conference.

Subsequently, the AJ stated, complainant was ordered to show cause

why her complaint should not be dismissed for failure to proceed.

The AJ found that complainant never responded to this show cause order.

Accordingly, the AJ dismissed complainant's request for a hearing and

remanded the complaint to the agency for a final decision.

On appeal, complainant contends that her former attorney failed,

without notice to her, to respond in a timely manner to the AJ's various

requests and that her former attorney was subsequently injured in an

automobile accident and unable to continue to represent complainant.

Complainant states that she has since retained alternate counsel and is

prepared to pursue her complaint.

The Commission finds that complainant failed to comply with the AJ's

orders as described in the AJ's December 20, 2001 Order of Dismissal.

An AJ may dismiss a complaint as a sanction for failure to comply with

an order of an AJ. See 29 C.F.R. � 1614.109(f)(3). In the instant

matter, however, it does not appear that the AJ dismissed the entire

complaint; rather, it appears that the AJ simply dismissed the hearing

request and remanded the complaint to the agency for a final decision.

The Commission finds that the AJ's dismissal of the hearing request was

an appropriate sanction, but that the agency's failure to issue a final

decision on the merits of the complaint was improper. Dismissal of the

complaint for complainant's failure to comply with the AJ's orders is

too extreme a sanction in the instant matter. Therefore, we shall remand

the matter so that the agency may issue a decision on the complaint.

Accordingly, we REVERSE the agency's decision and we REMAND the matter

to the agency for issuance of a final decision pursuant to 29 C.F.R. �

1614.110.

ORDER

The agency shall issue a final decision pursuant to 29 C.F.R. � 1614.110,

within 60 days of the date this decision becomes final. A copy of the

agency's final decision shall be sent to the Compliance Officer as

referenced herein.

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 24, 2002

__________________

Date