01A24314_r
08-21-2003
Ruth A. Byrd, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Ruth A. Byrd v. Department of Veterans Affairs
01A24314
August 21, 2003
.
Ruth A. Byrd,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A24314
Agency No. 99-3245
Hearing No. 310-A0-5347X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 25, 2002, 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.
In her formal complaint, dated July 26, 1999, complainant alleged that
she was subjected to discrimination in reprisal for prior EEO activity
when on or about June 9, 1999, she called Human Resources Management to
inquire about the jobs she applied for on April 23, 1999. Complainant was
informed that she did not submit an application. About 30 days later,
complainant's application was found; however, the jobs were already
filled.
At the conclusion of the investigation, complainant was informed of
her 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.
The AJ issued an Acknowledgment and Order of complainant's request for
a hearing on September 24, 2001. On October 2, 2001, the AJ issued a
Scheduling Order. In the Order, the AJ stated that complainant and the
agency must each submit, within fifteen (15) days of receipt of this
Order, a document, entitled �Prehearing Statement.� In the same Order,
the AJ scheduled a pre-hearing conference for December 18, 2001, and a
hearing for March 5, 2002. On October 16, 2001, complainant's Scheduling
Order was returned to the EEOC's Dallas District Office with a stamped
message �Return to Sender, Forwarding Order Expired.� The record reveals
that the AJ contacted the agency in an attempt to locate complainant's
current address and received a new current address.
On October 30, 2001, the AJ sent an Order to Show Cause to complainant's
old and new addresses. In her order, the AJ ordered complainant to
show cause why her complaint should not be dismissed as a sanction for
failure to respond to an Order of the AJ. The Order gave complainant a
deadline of November 13, 2001, to respond. The record reveals the two
Orders were returned to the Dallas District Office with stamped messages
�Unclaimed� and �Forwarding order expired.� The record further reveals
that in one of the returned envelopes, the AJ noted a third address.
By Order dated November 13, 2001, to complainant's third address,
the AJ ordered complainant to show cause why her complaint should
not be dismissed as a sanction for failure to respond to an Order of
the AJ. In her Order, the AJ stated that failure to respond to the
Order by November 27, 2001, would result in an immediate dismissal of
the complaint. The record reveals that the November 13, 2001 Order was
not returned. Complainant failed to respond to the AJ's Order.
On July 12, 2002, the AJ dismissed complainant's complaint for failure
to respond to the AJ's Order to Show Cause. By decision dated July 25,
2002, the agency implemented the AJ's decision.
On appeal, complainant, through her representative, claims that she
showed up at the initial scheduled hearing date on March 5, 2002, but
was informed that the hearing was cancelled. The representative states
that complainant had not intended to �disrespect� the Commission or
the AJ; and that she did not understand the significance of the AJ's
orders and letters. Further, the representative states that during the
relevant period, complainant was not represented; and that now she has
a representative, she will not miss any future deadlines.
In response, the agency contends that while complainant received the
AJ's Scheduling Orders, she failed to do the following: keep her address
current; respond to the Show Cause Order; submit pre-hearing statements;
attend the pre-hearing conference; and submit a witness list prior to
the scheduled hearing. The agency requests that the Commission affirm
its final action.
An AJ may dismiss a complaint as a sanction for failure to cooperate
pursuant to the provisions of 29 C.F.R. � 1614.109(f)(3). See Hale
v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). The
sanctions available to an AJ for failure to provide requested information
include an adverse inference that the requested information would have
reflected unfavorably on the party refusing to provide the requested
information, or issuance of a decision fully or partially in favor of
the opposing party. Id. These sanctions must be tailored in each case
to appropriately address the underlying complaint 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. Department of Transportation, EEOC Appeal
No. 01870232 (March 4, 1988).
Upon review, however, we determine that complainant's actions do not
rise to the level of contumacious conduct. Accordingly, we determine
that a lesser sanction would have been appropriate. See Clark v. USPS,
EEOC Appeal No. 01945228 (February 22, 1996). Specifically, we determine
that the AJ should have canceled the hearing and remanded the complaint
to the agency for a decision on the merits of her claim. The agency's
final action is REVERSED. This complaint is REMANDED to the agency for
further processing in accordance with the ORDER below.
ORDER
Within sixty (60) calendar days of the date that this decision becomes
final, the agency shall take final action in accordance with 29 C.F.R.
� 1614.110(b). A copy of the final agency 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
August 21, 2003
__________________
Date