01a54028
11-04-2005
Mark H. White, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Mark H. White v. Department of the Interior
01A54028
November 4, 2005
.
Mark H. White,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A54028
Agency Nos. LSM-02-07; LSM-04-01; LSM-04-02
Hearing No. 320-2005-00054X
DECISION
Complainant timely initiated an appeal from a final agency decision
concerning his 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 appeal is accepted pursuant to
29 C.F.R. � 1614.405. For the following reasons, the Commission vacates
and remands the agency's final decision.
The record reveals that during the relevant time, complainant was employed
as a Staff Accountant, GS-14 at the agency's Division of Financial
Management, Office of Surface Mining facility. Complainant sought EEO
counseling and, subsequently, filed formal complaints alleging that he
was discriminated against on the basis of race (African-American) when:
he was assigned a cubicle instead of an office;
he was denied the opportunity to serve as Acting Chief of his division;
and
he was denied the opportunity to serve as Acting Chief of the Payments
and Acquisition Branch.
The complaints were consolidated and at the conclusion of the
investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). However, on March 29, 2005 the AJ denied
complainant's hearing request and remanded the case to the agency for
a final decision. The AJ found that complainant failed to comply
with his February 24, 2005 order to respond to interrogatories and
provide information and documents requested by the agency. The agency
subsequently issued a Final Decision (FAD) on the merits, finding no
discrimination, which complainant now appeals.
Complainant on appeal argues that the AJ erred in dismissing his hearing
request and that complainant did not fail to comply with the AJ's order.
Complainant further argues that the order directed him to provide the
requested information by close of business on March 18, 2005 and that he
submitted the information via telephonic facsimile (fax) transmission
just two hours after the close of business on that date. He maintains
that he explained to both the AJ and the agency that his fax machine
was not working properly and that is why the information was late.
He further maintains that the AJ did not provide him with an opportunity
to oppose the agency's March 22 Motion for Sanctions but simply issued
his order dismissing the hearing request following the AJ's receipt of the
agency's motion. Finally, complainant argues, the agency has not claimed
that it was harmed by the documentation being submitted two hours late.
The agency on appeal requests that the FAD should be affirmed but offers
no substantive arguments.
The Commission's regulations afford broad authority for the conduct of
hearings by Administrative Judges. See 29 C.F.R. � 1614.109 et seq;
Rountree v. Department of Treasury, EEOC Appeal No. 07A00015 (July 13,
2001). The regulation states an AJ shall, in appropriate circumstances,
take such action as the AJ deems appropriate when a party �. . . fail[s]
without good cause shown to respond fully and in timely fashion to an
order of an administrative judge, or requests for the investigative
file, for documents, records, comparative data, statistics, affidavits,
or the attendance of witness(es).� 29 C.F.R. � 1614.109(f)(3)(i).
In the present case, however, we find that the AJ erred in not providing
complainant with an opportunity to respond prior to the dismissal of the
hearing request. The Commission has previously held that prior to the
imposition of sanctions, the party against whom such sanctions are to
be imposed is entitled to an opportunity to respond and show cause why
sanctions should not be imposed. See Miller v. Department of the Navy,
EEOC Appeal No. 01A01735 (June 18, 2004).
In his Decision, the AJ relies on Kelsey v. Department of the Army, EEOC
Appeal No. 01A05338 (July 30, 2001) to support his decision. We note,
however, that in that case the AJ first issued a Show Cause order prior
to dismissing the complaint. We therefore vacate the agency's finding
of no discrimination, and remand this matter in accordance with the
following Order, and the applicable EEOC Regulations.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC field
office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit
a copy of the complaint file to the EEOC Hearings Unit within fifteen
(15) calendar days of the date this decision becomes final. 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 Hearings Unit. Thereafter, the Administrative Judge shall issue
a decision in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action 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
November 4, 2005
__________________
Date
MEMORANDUM
TO: Glenn G. Meyers, Supervisory AJ
Hearings Unit
Denver District Office
FROM: Carlton M. Hadden, Director
Office of Federal Operations
RE: Mark H. White v. Department of the Interior
EEOC Appeal No. 01A54028
Enclosed is a decision requiring that the referenced complaint be
assigned to an Administrative Judge for the scheduling of a hearing.
The Office of Federal Operations will be forwarding the complaint file
to the Hearings Unit. We request that the Administrative Judge notify
the Compliance Division of the Office of Federal Operations after a
decision has been issued.
If you have any questions regarding the further processing of this
complaint, please contact Robert Barnhart, Director of Compliance and
Control at (202) 663-4525.
cc: Jeannette Leino, Acting District Director
Denver District Office
Anna Middlebrook
Administrative Judge Coordinator
Office of Field Programs