01A04132_r
10-24-2001
Parthapratim Basu, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Parthapratim Basu v. Department of Agriculture
01A04132
October 24, 2001
.
Parthapratim Basu,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A04132
Agency No. 971073
Hearing No. 100-99-7131X
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated December 12, 1999, dismissing 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (Asian American), color (brown), national origin
(Indian), religion (Hindu), marital status (married), and in reprisal
for prior EEO activity when:
Complainant was not selected for the Senior Executive Service (SES)
position of USDA Code Manager, vacancy announcement FSIS-96-60A in
July 1997;
Complainant was not selected for the SES position of Assistant Deputy
Administrator for Field Operations in July 1997;
Complainant was denied selection or referral for the Federal Executive
Training in July 1997; and
Complainant was denied the opportunity to �act� in his supervisor's
absence in August 1998.
The agency accepted complainant's complaint for investigation and
upon completion of the investigation, complainant was informed of his
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant requested a hearing before an AJ.
On December 4, 1999, the AJ issued an �Acknowledgment Order and Order
Regarding Discovery and Summary Judgment.� The Order stated in pertinent
part:
IT IS HEREBY ORDERED that the parties follow the procedures set forth in
this Order. Failure to comply with this Order may result in sanctions,
including dismissal or a decision in favor of the opposing party.
The Order also contained a Notice Regarding Summary Judgment which stated:
After a review of the record, I have determined that matters in this
complaint may not be in material dispute and I am considering issuing
findings and conclusions without holding a hearing (summary judgment).
The Order elsewhere provided:
I hereby ORDER the parties to respond to this Notice within 15 days of the
close of discovery. After reviewing the parties' responses and examining
the record, I will determine whether summary judgment is appropriate.
The absence of a response from a party will not necessarily preclude me
from issuing a summary judgment decision in that party's favor.
The record shows that complainant contacted the AJ on May 7, 1999,
to inquire about the status of his case and to request an extension of
time to provide arguments regarding summary judgment.
In response to complainant's May 7, 1999 letter, the AJ issued an Order on
May 20, 1999, denying complainant's request for an extension of time to
submit arguments regarding summary judgment. The AJ noted that neither
party had responded to the December 4, 1998 Notice Regarding Summary
Judgment and stated that no extensions of time would be granted. The AJ
stated that a decision regarding summary judgment would be forthcoming.
By recommended decision issued September 3, 1999, the AJ dismissed
complainant's complaint for failure to prosecute. The AJ noted that
responses to the Notice Regarding Summary Judgment were due by March
4, 1999, and stated that because complainant failed to respond to the
Notice, his complaint would be dismissed for failure to cooperate.
The agency issued a final decision on December 10, 1999, implementing
the AJ's Recommended Decision dismissing complainant's complaint for
failure to cooperate.
Upon review of the record, we find that the AJ improperly recommended
dismissal for failure to cooperate. First, the Acknowledgment Order and
Order Regarding Discovery and Summary Judgment does not make clear that
a complainant must file a motion for summary judgment or an opposition
brief to the AJ's proposed issuance of summary judgment. Rather, the
language might have been construed as merely providing notice of the
applicable time limits should a party decide to file such a motion or
opposition brief. Second, even if the Acknowledgment Order had expressly
advised the parties that they were required to file a motion for summary
judgment, such failure by complainant can not be the basis of a dismissal
for failure to cooperate. We note, however, that nothing precludes the
AJ from issuing a summary judgment decision, if the material facts are
not in genuine dispute and there is no genuine issue as to credibility.
See 29 C.F.R. � 1614.109(g).
Accordingly, the agency's decision to dismiss complainant's complaint
was improper and is REVERSED and the complaint is REMANDED for further
processing in accordance with the Order below.
ORDER
The agency shall request that the Hearings 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 24, 2001
__________________
Date