0120073669
10-31-2007
Tommy Coleman, Complainant, v. Pete Geren, Acting Secretary, Department of the Air Force, (Air Force National Guard Bureau), Agency.
Tommy Coleman,
Complainant,
v.
Pete Geren,
Acting Secretary,
Department of the Air Force,
(Air Force National Guard Bureau),
Agency.
Appeal No. 0120073669
Agency No. T0035TNF0105R
Hearing No. 490200600220X
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 18, 2007, 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. In his
complaint, complainant alleged that he was subjected to discrimination on
the bases of race (African-American) and reprisal for prior protected EEO
activity under an EEO statute that was unspecified in the record when:
1. on or around June 18, 2004, complainant was not selected for the
position of Aircraft Maintenance Supervisor.
At the conclusion of the investigation, complainant was issued a
copy of the investigative report and requested a hearing before an
Administrative Judge (AJ). The AJ scheduled a hearing for June 6, 2007.
Complainant objected to the date but did not explain his reasons and the
AJ overruled his objection. The day before the hearing, complainant
notified the AJ that he would be unable to attend, but again declined
to explain why. The AJ explained that the agency opposed a continuance
because the agency attorney was scheduled to go on active duty and
informed complainant that he needed to know complainant's reasons
for requesting a continuance. Complainant, however, again declined
to provide one. Following discussions between the AJ and the agency
representative, the AJ offered to postpone the hearing for one day,
but further notified complainant that if he declined the new date, the
AJ would dismiss the case. Complainant again objected to the date,
and again declined to provide a reason for his objection. In view
of complainant's refusal, the AJ issued a decision on July 2, 2007,
dismissing complainant's complaint. On July 18, 2007, the agency issued
a Final Decision implementing the AJ's decision. From this decision,
complainant appeals. Complainant offers no explanation on appeal for
his failure to attend on the dates scheduled.
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).
Sanctions must be tailored in each case to appropriately address the
conduct 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 his claim. The agency's
final action is VACATED. 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 issue a final decision addressing the merits
of complainant's claim, and provide complainant with appeal rights to
the Commission. 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
October 31, 2007
__________________
Date
2
0120073669
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120073669