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