01A12104
07-12-2002
Selena Street, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Selena Street v. Department of the Air Force
01A12104
7/12/02
.
Selena Street,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A12104
Agency No. ATL99AF0480E
DECISION
Complainant timely initiated an appeal from the agency's final order
(FAD) concerning her equal employment opportunity (EEO) 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 appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission REVERSES the FAD.
The record reveals that on January 12, 1998, complainant was terminated
from her position as a Desk Clerk at the agency's Dobbins Air Reserve
Base facility. When complainant was terminated, she sought EEO counseling
and subsequently filed a formal EEO complaint on June 9, 1999, claiming
that the agency had discriminated against her on the basis of race
(African-American). On July 8, 1999, an investigation was initiated to
address the issues raised in the complaint. At the conclusion of the
investigation, complainant was provided a copy of the investigative report
and she requested a hearing before an EEOC Administrative Judge (AJ).
On May 22, 2000, the AJ mailed a pre-hearing order to the agency and
complainant scheduling a telephonic pre-hearing conference on November 1,
2000. The pre-hearing order indicated that complainant was to provide
the agency with a telephone number at which she could be contacted
at the time of the conference. The pre-hearing order also required
each party to submit a list of witnesses to be called at the hearing.
Morever, the pre-hearing order required both parties to respond to each
other's discovery and motion requests.
The AJ noted that complainant failed to appear telephonically at the
pre-hearing conference and never provided the agency with her current
telephone number. The AJ indicated that prior to the pre-hearing
conference the AJ searched for complainant's current telephone number
in the Atlanta phone book but was unable to locate her phone number.
Moreover, the agency asserts that complainant did not respond to
discovery requests served on her in May 2000 and July 2000. The record
also indicates that complainant did not respond to the agency's Motion
Requesting Summary Judgement, served on May 31, 2000.
On July 31, 2000, the AJ issued an Order To Show Cause, requesting
complainant to provide good cause why she was not cooperating with
discovery and the general administrative process. Complainant asserted
in her August 16, 2000 response to the Order To Show Cause that she never
received the agency's discovery requests but also admits she failed to
pick up certified mail from the agency because she was out of town due
to a death in her family. However, the AJ found that the agency provided
documents for the record establishing complainant received the certified
discovery requests on July 7, 2000. Complainant has failed to present
persuasive evidence supporting her failure to respond to the agency's
discovery and motion requests. Moreover, complainant never submitted
a witness list to the AJ. The record reveals that complainant never
contacted the AJ to reschedule the pre-conference or otherwise explain
why she would not be available for the conference. Consequently, the AJ
remanded the complaint to the agency, and recommended that it be dismissed
for failure to prosecute. In a final decision dated December 20, 2000,
the agency adopted the AJ' s decision and dismissed the complaint for
failure to prosecute.
The record includes a Counselor's Report, formal complaint, notice of
processing, and a Report of Investigation. The investigation includes
a completed investigative report, affidavits from relevant officials,
and numerous exhibits.
EEOC Regulation 29 C.F.R. � 1614.109(b) provides that an AJ may dismiss
complaints pursuant to 29 C.F.R. 1614.107, on his or her own initiative,
after notice to the parties, or upon an agency's motion to dismiss
a complaint. However, 29 C.F.R. � 1614.107(a)(7), which permits the
dismissal of a complaint on the grounds of failure to prosecute, is only
available to an AJ as a sanction when the complainant fails to comply
with an agency request for relevant information. See Hale v. Department
of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). Moreover, if
sufficient information is available on record to adjudicate the complaint,
dismissal may not be appropriate. See 29 C.F.R. � 1614.107(a)(7); see
also Ross v. United States Postal Service, EEOC Request No. 05900693
(August 17, 1990).
The Commission finds that the record in this case is fully developed
and contains sufficient evidence for the agency to render a decision
on the merits of the complaint. Therefore, we find that the AJ's
dismissal on the grounds of failure to prosecute without also remanding
the complaint to the agency for issuance of a decision on the merits,
and the agency's adoption of this decision, was improper. Since the AJ
should have remanded the complaint to the agency to render a decision
on the merits, the Commission will remand the case to the agency for the
issuance of a final decision on the merits. See 29 C.F.R. 1614.107(a)(7);
Reed v. United States Postal Service, EEOC Appeal No. 01A05039 (January
3, 2001). Accordingly, the agency's dismissal is REVERSED, and the
complaint is REMANDED to the agency to render a final decision on the
merits pursuant to the ORDER below.
ORDER
Within sixty (60) calendar days from the date this decision becomes final,
the agency shall issue a final decision on the merits of the 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 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
7/12/02
Date