Roger Caldwell, Jr., Complainant,v.Donald L. Evans, Secretary, Department of Commerce, Agency.

Equal Employment Opportunity CommissionSep 24, 2002
01A11201_r (E.E.O.C. Sep. 24, 2002)

01A11201_r

09-24-2002

Roger Caldwell, Jr., Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.


Roger Caldwell, Jr. v. Department of Commerce

01A11201

September 24, 2002

.

Roger Caldwell, Jr.,

Complainant,

v.

Donald L. Evans,

Secretary,

Department of Commerce,

Agency.

Appeal No. 01A11201

Agency No. 99-63-00509D

Hearing No. 170-A0-8513

DECISION

Complainant appealed to this Commission from the dismissal of his

complaint. The AJ dismissed complainant's employment discrimination

complaint as a sanction for his failure to respond to the AJ's September

27, 2000 order to compel discovery. In his complaint, complainant alleged

harm on the bases of race (African-American), sex (male), color (black),

and age when:

Complainant was sexually harassed by female employees in his work section;

On December 18, 1998, complainant was informed that a background check

indicated he was a convicted felon;

Complainant was accused of inflating the test scores of people with

little or no education;

On November 30, 1998, complainant submitted a letter requesting an

official transfer for which he never received a response; and

On January 22, 1999, complainant's employment was terminated.

On July 21, 2000, the AJ acknowledged receipt of complainant's request

for a hearing. She also ordered the parties to engage in discovery with

one another, concluding within 90 days. The order warned both parties

that noncompliance could result in sanctions, as provided in 29 C.F.R. �

1614.109(f)(3).

The agency sent complainant requests for admissions, documents, and

responses to interrogatories. Complainant failed to respond to the

requests, or to telephone calls from agency counsel. As a result,

the agency filed a motion to compel discovery with the AJ.

Complainant failed to respond to the agency's motion, and the AJ

ordered complainant to respond to the discovery requests. The AJ's

order notified complainant that his failure to comply could result

in sanctions, including dismissal of his complaint. When complainant

failed to comply with the order to compel discovery, the AJ sanctioned

complainant by dismissing his complaint. Complainant appealed directly

from the AJ's decision. On appeal, the agency argues that the AJ's

decision was correct. Therefore, we find that the agency has effectively

issued a final action fully implementing the AJ's dismissal.

Failure to respond to an order to compel discovery may result in

sanctions. Equal Employment Opportunity Management Directive for 29

C.F.R. Part 1614 (EEO MD-110), 7-22 (November 9, 1999); see 29 C.F.R. �

1614.109(f)(3). The range of available sanctions includes, inter alia,

adverse inferences, exclusion of evidence, and issuing a decision in

favor of the other party. 29 C.F.R. � 1614.109(f)(3). These sanctions

�must be tailored in each case to appropriately address the underlying

conduct . . . being sanctioned.� Hale v. Department of Justice, EEOC

Appeal No. 01A03341 (December 8, 2000). If a lesser sanction would

suffice to deter the conduct and remedy the opposing party, the AJ may

be abusing her power by imposing a harsher sanction. Id.

Complainant failed to comply with the AJ's order to compel discovery.

Further, complainant was put on notice that sanctions up to and including

dismissal may be levied for failure to comply with the AJ's orders.

Nonetheless, dismissal of a complaint as a sanction is only appropriate

in extreme circumstances. Id. The present facts do not present such

extreme circumstances. The Commission finds that complainant has

forfeited his right to a hearing before the AJ, but not to a decision

on the merits of his complaint.

CONCLUSION

Accordingly, the agency's dismissal is REVERSED, and the complaint is

REMANDED for further processing consistent with the order provided herein.

ORDER

Within sixty (60) calendar days of the date this decision becomes final,

the agency must issue a final decision on the merits of complainant's

remanded 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 as

referenced below.

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