01996592
07-31-2002
Alma M. Johnson, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, Agency.
Alma M. Johnson v. Department of the Treasury
01996592
July 31, 2002
.
Alma M. Johnson,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01996592
Agency Nos. 97-1152 and 98-1056
DECISION
The complainant filed a timely appeal with this Commission from the
agency's decision dated August 3, 1999, concerning her two complaints
of unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
At the conclusion of separate investigations, the complainant requested
hearings on both complaints. On December 29, 1997, and August 18,
1998, Acknowledgment Orders and Orders Regarding Discovery and Summary
Judgment were issued by the Equal Employment Opportunity Commission
Administrative Judge (AJ). The parties were ordered to respond to the
Notices Regarding Summary Judgment within 15 days of the close of the
90 day discovery period. Additionally, the parties were advised that
pursuant to 29 C.F.R. � 1614.107 and .109(f)(3), failure to comply with
these Orders could result in sanctions, including dismissal or a decision
in favor of the opposing party. On April 28, 1998, and on December 1,
1998, the agency submitted motions for Summary Judgment.
In an Order dated May 26, 1999, the AJ recounted the above. At some
point the AJ consolidated the two complaints. The Order of May 26,
1999 stated that because the complainant did not respond to the AJ's
orders or the agency's submissions, the complaints were dismissed for
failure to prosecute. In August 1999, the agency issued a final decision
finding no discrimination.
The Administrative Judge's authority to issue sanctions is set forth
at 29 C.F.R. � 1614.109(f)(3). Additional guidance can be found in EEO
MD-110, 7-9 and Rules 11 and 37 of the Federal Rules of Civil Procedure.
In appropriate circumstances, an Administrative Judge may sanction a party
for its conduct. Sanctions should be tailored to deter the party from
similar conduct in the future and, if warranted, to equitably remedy
any harm incurred by the opposing party. Sanctions should not be so
severe that they result in inequity, nor should they be so lenient that
they fail to serve as a deterrent. If a lesser sanction would suffice
to deter the conduct and to equitably remedy the opposing party, it
may constitute an abuse of discretion to impose a harsher sanction.
See Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December
8, 2000). Administrative Judges must distinguish between conduct that
does not warrant the imposition of a sanction and conduct which does.
The dismissal order explicitly relied on the complainant's failure
to respond to notices of summary judgment and agency motions for
summary judgment. This is not the type of conduct which an AJ should
sanction. EEOC Handbook for Administrative Judges, 6-1 (July 1, 2002)
(a complainant's failure to respond to a notice of the Administrative
Judge's intent to issue a decision without a hearing is not the type of
conduct which an Administrative Judge should sanction).
Accordingly, the agency's final decision and the AJ's dismissal order
are VACATED, and the complaint is REMANDED for further processing in
accordance with the ORDER below.
ORDER
The agency shall submit to the Hearings Unit of the appropriate EEOC
field office within 15 calendar days of the date this decision becomes
final a request for an EEOC AJ to process the remanded complaints
97-1152 and 98-1056. With this request the agency shall submit a copy
of the complaint files for both complaints, including administrative
and investigatory files, all correspondence to and from the AJ by the
parties, and this decision. Thereafter, the AJ shall issue a decision
in accordance with 29 C.F.R. � 1614.109,<1> and the agency shall issue
a final action in accordance with 29 C.F.R. � 1614.110 within 40 days
of receipt of the AJ decision.
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
July 31, 2002
__________________
Date
1The AJ will apply this regulation to decide whether a hearing is
appropriate.