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