Steven G. Ivey, Complainant,v.John W. Snow, Secretary, Department of the Treasury, Agency.

Equal Employment Opportunity CommissionOct 14, 2003
01A33016_r (E.E.O.C. Oct. 14, 2003)

01A33016_r

10-14-2003

Steven G. Ivey, Complainant, v. John W. Snow, Secretary, Department of the Treasury, Agency.


Steven G. Ivey v. Department of the Treasury

01A33016

October 14, 2003

.

Steven G. Ivey,

Complainant,

v.

John W. Snow,

Secretary,

Department of the Treasury,

Agency.

Appeal No. 01A33016

Agency No. 02-1135

Hearing No. 110-A3-8092X

DECISION

Complainant filed a timely appeal with this Commission from the agency's

order dated March 24, 2003, dismissing his 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. In his complaint,

complainant alleged that he was subjected to discrimination on the bases

of race (Caucasian), color (white), sex (male), and reprisal for prior

EEO activity when his employment was terminated during the probationary

period effective March 7, 2001.

The record reveals that during the relevant time, complainant was

employed as Data Transcriber, GS-356-03, at the agency's Elizabeth City,

North Carolina's, Data Conversion Branch. Believing he was a victim

of discrimination, complainant sought EEO counseling and subsequently

filed a formal complaint on March 18, 2002. At the conclusion of the

agency's 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 February 14, 2003, the AJ issued a decision dismissing the complaint

because complainant failed to prosecute his case. The AJ found

that complainant failed to appear at the February 14, 2003 hearing.

The AJ found that he had mailed an Order on November 22, 2002, to the

agency and complainant scheduling a pre-hearing conference on February

5, 2003, with a hearing set for February 14, 2003. The AJ found

that complainant failed to submit the pre-hearing conference report

(including a witness list) as required by the scheduling order and did

not appear at the pre-hearing conference scheduled on February 5, 2003.

The AJ stated that he issued an Order to Show Cause dated February 5,

2003, ordering complainant to show cause for his failure to submit any

witness list or appear at the pre-hearing conference on February 5,

2003. The AJ noted that on February 12, 2003, complainant facsimiled a

request for a continuance. The AJ denied the request as untimely and

not justified. The AJ said that, in his request, complainant stated

that he did not receive the acknowledgment and scheduling order until

the end of January 2003. The AJ found that nothing in complainant's

request set forth sufficient grounds for a continuance.

In its final order the agency stated that it was fully implementing

the AJ's decision dismissing the complaint pursuant to 29 C.F.R. �

1614.107(a)(7).

We find the agency's dismissal of the complaint to be improper.

It is noted that the AJ has the authority to sanction a party for

failure without good cause shown to fully comply with an order. 29

C.F.R. � 1614.109(f)(3). However, 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 Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December

8, 2000). Upon review, the Commission finds that complainant's failure

to appear at the hearing, appear at the pre-hearing conference, and

failure to submit a pre-hearing conference report is insufficient, under

the instant circumstances, to warrant dismissal of the entire complaint.

To the extent that the AJ intended to sanction complainant by dismissing

the entire complaint, the Commission finds that the AJ's sanction to

dismiss the complaint was improper. In the instant case, the Commission

finds that the appropriate sanction is to cancel the hearing and remand

the complaint to the agency for a decision without a hearing.

Dismissal of the complaint under 29 C.F.R. � 1614.107(a)(7) is

inappropriate under the instant circumstances, because the investigation

has apparently been completed and there is apparently sufficient

information in the record to adjudicate the complaint. Therefore, we

shall remand the matter to the agency so that it may issue a decision

on the complaint.

The agency's decision dismissing the complaint is REVERSED and we

REMAND the complaint to the agency for further processing pursuant to

the Order herein.

ORDER

Within sixty calendar days from the date this decision becomes final,

the agency shall take final action 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 (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

October 14, 2003

__________________

Date