01A13169_r
10-19-2001
Maria A. Gutierrez, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Maria A. Gutierrez v. Department of the Air Force
01A13169
October 19, 2001
.
Maria A. Gutierrez,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A13169
Agency No. ED1M00009
Hearing No. 150-A1-8014X
DECISION
Upon review, the Commission finds that the agency's May 29, 2001 decision
dismissing complainant's complaint was improper. Complainant alleges
that she was discriminated against on the basis of national origin when:
On or about February 3, 1999, the Child Care Director, who is white,
refused to authorize her emergency leave, although the director knew
that it was a bonafide emergency in that complainant's home in Georgia
had burned down.
On or about March 30, 1999, the child care director moved complainant
from one section to another because of her accent, so as to appease a
complaining parent who was white. Because of complainant's linguistic
characteristics, the director made an adverse employment decision by
moving her to another section, isolating her in order to minimize her
contact with parents.
On or about March 1999 to January 2000, her first level supervisor, who
is white, continually harassed her by yelling at her and falsely accusing
her of wrong doings regarding work related matters. The directors took
no corrective action after she told them about the incidents.
On or about July 8, 1999, the first level supervisor, during a �yelling
incident,� told her that she (supervisor) was told by the director to
harass her on a daily basis so that she would quit her job.
On or about October 1999, the supervisor gave complainant her
annual evaluation which was lower than the previous year's rating.
The supervisor, acting in concert with the director, made an adverse
employment decision by giving a lower rating without providing written
counseling during the rating period.
On or about January 18, 2000, her first level supervisor refused to
allow a co-worker to provide needed supplies for activities within the
child care room.
On or about March 3, 2000, the director ordered her to attend �Assertive
Skills Training� as a term and condition for continued employment
without explanation.
On or about March 20, 2000, the director moved her from the toddler's
section to infants after she complained to the EEO regarding these
matters.
On or about March 23, 2000, the former supervisor assaulted her by
shutting her fingers in a door and causing injury that resulted in a
broken bone which required a splint for six weeks.
On or about March 29, 2000, the former supervisor continued to harass her
by staring at her in an unfriendly manner for an extended period of time.
On April 25, 2001, an Administrative Judge (AJ) dismissed complainant's
complaint for failure to cooperate pursuant to 29 C.F.R. � 1614.109(b),
after complainant did not appear at a telephonic pre-hearing conference
that was scheduled for April 24, 2001. The agency, by decision dated May
29, 2001, adopted the AJ's dismissal. The AJ supports the dismissal with
the Scheduling Order dated February 12, 2001, which warns that �failure
to appear at the pre-hearing conference may result in the dismissal of
the complaint for failure to cooperate/prosecute.� EEOC Regulation
29 C.F.R. � 1614.107(a)(7), however, provides for the dismissal of a
complaint where the agency has provided complainant with a written request
to provide relevant information or otherwise proceed with the complaint,
and complainant has failed to respond to the request within 15 days of its
receipt or complainant's response does not address the agency's request,
provided that the request included a notice of the proposed dismissal.
Instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available.
In the instant case, there was no notice of proposed dismissal issued
to complainant, as required under � 1614.107(a)(7). Complainant was
not provided with a 15 day time frame in which to cooperate.
Therefore, the Commission finds that the agency's decision to dismiss
complainant's complaint for failure to cooperate was improper and is
hereby REVERSED. The complaint is REMANDED for further processing in
accordance with this decision and the Order below.
ORDER
The agency shall request that the Hearing Unit of the appropriate EEOC
District Office schedule a hearing. The agency is directed to submit
a copy of the complaint file to the EEOC District Office within 15
calendar days of the date this decision becomes final for a decision
from an Administrative Judge in accordance with 29 C.F.R. � 1614.109.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the EEOC District Office. After receiving a decision from the EEOC
Administrative Judge, the agency shall issue a decision in accordance
with 29 C.F.R. � 1614.110.
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
October 19, 2001
__________________
Date