01996069
06-06-2000
Ronald J. Dixon, Complainant, v. Richard J. Danzig,
Ronald J. Dixon, )
Complainant, )
)
v. ) Appeal No. 01996069
) Agency No. DON-97-68925-002
Richard J. Danzig, ) Hearing No. 100-98-7582X
Secretary, )
Department of the Navy, )
Agency. )
____________________________________)
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.<1> The appeal is accepted pursuant to 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
Complainant alleged that he was subjected to retaliation based on
prior EEO activity and discrimination based on race (Black) when: (1)
he received an "Exceeds Fully Successful" (Level 4) performance rating
for the period November 27, 1995 - June 30, 1996; and (2) he was denied
overtime and training opportunities.
The record reveals that during the relevant time, complainant was
employed as a maintenance pipe fitter/plumber at the agency's Public
Works Center facility in Bethesda, Maryland. Believing he was a victim
of discrimination, complainant sought EEO counseling and subsequently
filed a formal complaint on November 26, 1996. At the conclusion of
the investigation, complainant was informed of his right to request
a hearing before an EEOC Administrative Judge (AJ) or alternatively,
to receive a final decision by the agency. Complainant requested a
hearing before an AJ.
On April 21, 1998, the AJ issued an "Acknowledgment Order and Order
Regarding Discovery and Summary Judgment." The Order stated in pertinent
part:
After a review of the record, I have determined that matters in the
complainant may not be in material dispute and that it may therefore be
appropriate for me to issue findings and conclusions on these matters
without holding a hearing . . . Motions for summary judgment are due
within 15 days of the close of discovery; reply motions are due 15 days
thereafter.
The Order elsewhere provided:
Failure to respond to this notice will result in the imposition
of sanctions, up to an including dismissal . . . . If you oppose the
summary judgment procedure, you may wish to bring to my attention facts
to persuade me that a hearing is indeed appropriate. In the alternative,
you may choose to use your written response to present arguments why,
as a matter of law, I should adjudicate the complaint in your favor on
summary judgment.
By recommended decision issued June 3, 1999, the AJ dismissed the
complaint for failure to prosecute, stating that "[c]omplainant has
forfeited his right to proceed in the hearing process when he failed to
comply with the Order to file a motion for summary judgment." In the
alternative, the AJ found that on the merits of the complaint, complainant
had failed to prove discrimination or retaliation by a preponderance of
the evidence. By FAD issued July 6, 1999, the agency adopted the AJ's
findings and conclusions. Neither party has submitted contentions on
appeal.
Based on the foregoing procedural history, we find for two independent
reasons that the AJ improperly recommended dismissal for failure to
prosecute. First, the Acknowledgment Order, as quoted above, 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.<2> Second, even assuming that the Acknowledgment
Order had expressly advised a complainant that he was required to file
a motion for summary judgment or opposition brief thereto, the proper
consequence of the failure to file a summary judgment opposition brief
is not dismissal for failure to prosecute but rather adjudication on
the merits without a hearing. Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 7-15 (November 9, 1999)
provides in pertinent part:
If the Administrative Judge determines that some or all of the material
facts are not in genuine dispute, s/he may, after giving notice to the
parties and providing them an opportunity to respond within 15 days of
receipt of the notice, issue an order limiting the scope of the hearing
or issue a decision without conducting a hearing.
Although this provision addresses a notice of intent to issue a decision
without a hearing, as opposed to an order requiring the parties to file
summary judgment submissions, it nonetheless makes clear that where a
party fails to oppose issuance of a decision without a hearing, the AJ may
proceed to issue such a decision on the merits, based on the information
contained in the record to date. Accordingly, absent other circumstances
warranting dismissal for failure to prosecute, complainant's failure
to file a summary judgment opposition brief did not warrant dismissal
of the instant case, but rather issuance of a decision without a hearing.
Nevertheless, as noted above, the AJ, in the alternative, addressed
complainant's claims on the merits and concluded that complainant had
failed to meet his burden of proof. Applying the standards set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Hochstadt
v. Worcester Foundation for Experimental Biology, Inc., 425 F. Supp. 318,
324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976) (applying McDonnell
Douglas to reprisal cases), the Commission agrees with the AJ's finding
that complainant failed to present evidence that more likely than not,
the agency's articulated reasons for its actions were a pretext for
discrimination or retaliation.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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:
June 6, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
1 On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2Additionally, we note that because enclosed with the Acknowledgment
Order was a designation of representative form to be returned to the AJ,
a complainant might conclude that returning that form was the "response"
required to avoid sanctions.