0120073275
02-11-2011
Phyllis L. Black, Complainant, v. Timothy F. Geithner, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
Phyllis L. Black,
Complainant,
v.
Timothy F. Geithner,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120073275
Hearing No. 490-2007-00074X
Agency No. EEODFS-06-0301-F
DECISION
Complainant timely filed an appeal with this Commission from the
Agency's decision dated July 6, 2007, dismissing 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.
The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a).
For the following reasons, the Commission REVERSES the Agency's final
order, and REMANDS the complaint for further action.
BACKGROUND
In her complaint filed on August 31, 2006, Complainant alleged that the
Agency subjected her to discrimination in reprisal for prior protected
EEO activity arising under Title VII when:
1. on May 29, 2006, she did not make the best-qualified list (BQL)
for the position of Offer-ln-Compromise Examiner, GS-0110-11; and
2. on June 29, 2006, the Complainant received her annual performance
appraisal, which did not accurately assess her performance.
At the conclusion of the investigation, complainant received a copy of the
investigative file and requested a hearing before an EEOC Administrative
Judge (AJ). In a decision dated June 20, 2007, the AJ issued an Order
of Dismissal, finding that Complainant had failed to respond to the
Agency's discovery requests, failed to respond to the AJ's Order to
respond to the Agency's discovery requests, and failed to respond to
the AJ's Show Cause Order.
The Agency's final decision dated July 6, 2007, fully implemented the
AJ's decision, which dismissed the complaint for failure to cooperate
pursuant to 29 C.F.R. � 1614.107(a)(7).
CONTENTIONS ON APPEAL
Complainant did not submit any contentions on appeal. The Agency did
not submit any argument in opposition to Complainant's appeal.
ANALYSIS AND FINDINGS
The AJ issued a dismissal of Complainant's complaint as a sanction
in this case. Complainant does not dispute that she failed to respond
to the Agency's discovery requests and the AJ's Order. An AJ has the
authority to sanction either party for failure without good cause shown to
fully comply with an order. 29 C.F.R. � 1614.109(f)(3); EEOC Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 7, 9-10 (1999).
However, such sanctions must be tailored in each case to appropriately
address the underlying conduct of the party being sanctioned. A sanction
may be used to both deter the non-complying party from similar conduct
in the future, as well as to equitably remedy the opposing party. If a
lesser sanction would suffice to deter the conduct and to equitably remedy
the opposing party, an AJ may be abusing his or her discretion to impose
a harsher sanction. Dismissal of a complaint by an AJ as a sanction
is only appropriate in extreme circumstances, where the complainant
has engaged in contumacious conduct, not simple negligence. See Thomas
v. Dep't of Transportation, EEOC Appeal No. 01870232 (March 4, 1988).
In the present case, Complainant failed to respond to the Agency's
discovery request, to the AJ's Order, and to the Show Cause Order.
Therefore, while we agree that Complainant's conduct warrants a
sanction, we find that the AJ erred in dismissing her complaint.
See Hale v. Dep't of Defense, EEOC Appeal No. 01A22458 (July 15, 2003).
Complainant's failure to respond to the Agency and the AJ's Order and
Show Cause Order does not rise to the level of contumacious conduct.
It is well-settled that when we find that a complainant has not cooperated
in the hearings process, absent a finding of contumacious conduct, the
appropriate sanction is to dismiss the hearing request, and remand the
complaint to the Agency to issue a final agency decision on the record.
See Cole v. Dep't of the Navy, EEOC Appeal No. 01A42577 (Feb. 16, 2005);
Bates v. Dep't of Veterans Affairs, EEOC Appeal No. 0120063654 (Nov. 30,
2007); Byers v. Dep't of Homeland Security, EEOC Appeal No. 0120082542
(Nov. 7, 2008). Given that the Agency conducted a full investigation of
the complaint, we find that the appropriate sanction here is to return
the complaint to the Agency to issue a final decision on the merits based
on the existing record. We find that the record as it was developed in
the investigative process is sufficient upon which to base a decision.
Therefore, we shall remand the matter so that the Agency may issue a
decision in accordance with 29 C.F.R. � 1614.110(b).
CONCLUSION
The agency's decision dismissing the complaint is REVERSED. The complaint
is REMANDED to the agency for further processing in accordance with this
decision and the Order herein.
ORDER
Within sixty (60) calendar days from the date this decision becomes final,
the agency shall issue a final decision on the complaint in accordance
with 29 C.F.R. � 1614.110. A copy of the agency's final decision must
be sent to the Compliance Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 77960, Washington,
DC 20013. 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 (M0610)
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), at 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
77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 11, 2011
Date
2
0120073275
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120073275