01A05818_r
12-28-2001
Delores Owoh, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Delores Owoh v. Department of the Army
01A05818
December 28, 2001
.
Delores Owoh,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A05818
Agency No. DAY97AR0555E
Hearing Nos. 280-98-4150X, 280-98-4209X
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated July 31, 2000, dismissing her 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 her
complaint, complainant alleged that she was subjected to discrimination
on the bases of race (African American) and in reprisal for prior EEO
activity when she was treated unfairly with respect to various terms
and conditions of employment and was terminated from the agency.
BACKGROUND
The agency accepted complainant's complaint for investigation and
upon completion of the investigation, complainant was informed of her
right to request a hearing before an EEOC Administrative Judge (AJ).
Complainant requested a hearing before an AJ.
The original hearing date in this case, scheduled for October 1999 at
Fort Riley, Kansas, was postponed due to a request by the AJ. The record
reveals that the hearing was rescheduled for February 16, 2000, but was
later canceled by complainant's attorney due to a scheduling conflict.
On February 15, 2000, a rescheduling conference was held to set a third
date for the hearing. Complainant's attorney, a resident of New Jersey,
engaged in a conference with the agency and the AJ regarding scheduling
a new date for the hearing; however, complainant, a resident of Georgia,
was not present during the rescheduling conference. At the conference,
the AJ proposed an April 10, 2000 hearing date. During the conference,
complainant's attorney stated that he would be unable to attend a hearing
scheduled for this date and proposed a hearing date after April 20, 2000.
The AJ issued an Order dated February 15, 2000, scheduling the hearing
for April 10, 2000 at Ft. Riley, Kansas, and noted that complainant's
attorney would not attend a hearing scheduled for this date.
On February 23, 2000, upon notification of the new hearing date,
complainant contacted the AJ and requested reconsideration of his decision
to schedule the hearing for a date when her attorney was unavailable.
Complainant stated if her request for reconsideration was denied, she
would be present at the April 10, 2000 hearing. The AJ issued a March 8,
2000 Order, denying the request. On March 15, 2000, complainant asked
for the address to file an interlocutory appeal of the AJ's decision
to schedule the hearing for April 10, 2000, and also requested that the
AJ recuse himself from the case. Complainant's counsel wrote the AJ on
March 18, 2000, stating that complainant intended to appeal the decision
to schedule the hearing on April 10, 2000, due to the fact that the
absence of counsel would deprive her of a �fair� and �impartial� hearing.
The AJ issued an Order on March 27, 2000, stating that he would not
recuse himself from this case. On March 28, 2000, complainant's attorney
requested reconsideration of the AJ's Order setting the hearing for April
10, 2000. The AJ issued an Order on March 31, 2000, denying the request
for reconsideration. By facsimile sent on April 3, 2000, complainant's
attorney again requested the AJ hold the hearing in abeyance pending
complainant's appeal of the March 27, 2000, and March 31, 2000 Orders.
The AJ issued an Order dated April 4, 2000, which treated the April 3,
3000 facsimile as a motion to stay and therein denied the motion.
The record reveals that on Friday, April 7, 2000, complainant's attorney
called the AJ at 6:27 a.m. and left a voice mail message indicating that
he was faxing four pages of material regarding �treatment of complainant�
and �a doctor's note.� Complainant's attorney faxed the AJ and the agency
a letter referencing �Notice of Complainant's Emergency Treatment.� The
letter stated that �due to a medical emergency, the Complainant will
not be able to travel to Fort Riley, Kansas for the hearing scheduled
for April 10, 2000.� The letter stated that complainant was treated
for musculoskeletal chest pain at the emergency department of Kennedy
Memorial Hospital and noted that the attending physician recommended
that complainant rest �as much as possible for at least one week.�
Attached to the facsimile, complainant's attorney sent three prescription
blanks from Physician A of the Emergency Department at Kennedy Memorial
Hospital, Stratford, New Jersey. The three prescription blanks contain
complainant's name and are dated April 6, 2000. Two of the blanks contain
prescriptions for medicine and one blank states �no work for one week.�
The agency filed a motion to dismiss complainant's complaint on April 7,
2000, for failure to prosecute.
The hearing commenced on Monday, April 10, 2000, without complainant or
her attorney present. The agency and the agency representative were
present at the hearing. The AJ noted that the agency's April 7, 2000
motion to dismiss was procedurally inaccurate and granted the agency
leave to refile a motion to dismiss complainant's complaint. On April
12, 2000, the AJ issued an Order to Show Cause to complainant and her
counsel to show �good cause� in writing within ten (10) days of service
why the case should not be dismissed for reason of complainant's failure
to prosecute and for further reason of complainant's failure to attend
the hearing scheduled for April 10, 2000. The Agency filed a motion to
dismiss which was received by the AJ on April 13, 2000.
Complainant's counsel responded to the agency's motion to dismiss via
letter dated April 11, 2000 and complainant responded to the Order
to Show Cause via facsimile on April 13, 2000 (and also included a
copy of her attorney's April 11, 2000 letter). Both responses state
that complainant was unable to attend the April 10, 2000 hearing due to
complainant's medical circumstances. Complainant attached a copy of the
three prescription blanks for the Kennedy Memorial Hospital as well as a
copy of a receipt for a Greyhound Bus ticket in complainant's name for
travel from Camden, New Jersey to Junction City, Kansas for departure
on April 7, 2000 and arrival in Kansas 10:40 p.m. on April 8, 2000.
Complainant explained that she was experiencing severe chest pain which
was diagnosed as musculoskeletal chest pains at the Emergency Room of the
Kennedy Memorial Hospital. Complainant states that she was prescribed
medication and as a result of her medical situation was unable to take
the thirty-two-hour bus ride from New Jersey to Kansas for the hearing.
On June 27, 2000, the AJ issued a Decision and Order of Dismissal in
which he dismissed complainant's complaint pursuant to 29 C.F.R. �
1614.109(f)(3), for failure to prosecute and for failure to follow and
comply with Orders resultant from complainant's failure to attend the
April 10, 2000 hearing. The AJ acknowledged that he received a voice
mail message from complainant's attorney on April 7, 2000 as well as the
April 7, 2000 facsimile and the accompanying prescription blanks. The AJ
stated that the message he received did not �request a continuance, stay
or adjournment of the hearing for any reason; nor did the message advise
that Complainant would not be attending the hearing the following Monday.�
The AJ also found that although one of the prescription blanks stated �no
work for one week� it �did not in any way restrict or limit Complainant
from travel, nor did [Physician A] state that Complainant should rest
as much as possible for one week.� The AJ stated complainant's response
to the Order to Show Cause did not constitute good cause for her failure
to attend the hearing. The AJ stated that there were no �affidavits or
verified statement from anyone� and he noted that �[n]either [Physician
A] nor anyone associated with Kennedy Memorial Hospital provided any
information to substantiate the conclusory assertions of Complainant
and her counsel.�
The agency took final action on July 31, 2000, adopting the AJ's Decision
and Order of Dismissal.
On appeal, complainant states that her case was improperly dismissed
for failure to cooperate. Complainant reiterates that she was unable
to attend the hearing on April 10, 2000, due to medical reasons.
Complainant states that she traveled from Atlanta to New Jersey to
consult with her attorney prior to the scheduled hearing. Complainant
states that she bought a bus ticket to travel to the hearing in Kansas.
Complainant provides a receipt from Greyhound Lines showing that she
purchased a bus ticket for travel from Camden, New Jersey departing
on April 6, 2000 to arrive at Junction City, Kansas on April 8, 2000.
The receipt shows that the ticket was purchased on April 5, 2000.
Complainant explains that she was rushed to the emergency departments
of Our Lady of Lourdes Medical Center and Kennedy Memorial Hospital for
severe chest pain and breathing problems. Complainant submits copies of
her medical records from Our Lady of Lourdes Medical Center in New Jersey
dated April 6, 2000, and medical records from Kennedy Memorial Hospital
in New Jersey dated April 6-7, 2000, verifying her medical condition and
treatment. In addition, complainant submits prescriptions blanks from
Our Lady of Lourdes Medical Center and Kennedy Memorial Hospital during
the relevant time frame. Complainant notes that the Emergency Doctor
prescribed two medications and restricted her from work for one week.
Complainant states that based on her medical condition, she was unable
to travel for thirty-two (32) hours on the bus from New Jersey to Kansas.
An AJ has the authority to sanction either party for failure without good
cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3);
EEOC Management Directive 110 Chapter 7, pp. 9-10 (1999). Such sanctions
may include an adverse inference that the requested information would
have reflected unfavorably on the party refusing to provide the requested
information, exclusion of other evidence offered by the party refusing
to provide the requested information, issuance of a decision fully or
partially in favor of the opposing party, or other actions as appropriate.
29 C.F.R. � 1614.109(f)(3).
Upon review of the record, the Commission finds that dismissal of
complainant's complaint was inappropriate in this case. The record
reveals that complainant's attorney phoned the AJ and provided both the
AJ and the agency with a facsimile containing �Notice of Complainant's
Emergency Room Treatment� on April 7, 2000, three days prior to the
scheduled hearing. In this facsimile, complainant's attorney stated that
complainant was treated for musculoskeletal chest pain at the emergency
department of Kennedy Memorial Hospital by Physician A. Although
complainant did not provide copies of the medical records documenting
her diagnosis and treatment, she did provide three prescription blanks
signed by Physician A of Kennedy Memorial Hospital which contained
complainant's name and were dated April 6, 2000.
The record indicates that in response to the AJ's Order to Show Cause,
both complainant and her attorney responded within a timely fashion.
The Show Cause Order did not specify what additional documentation should
be provided by complainant. With regard to complainant's submissions, the
AJ stated that �[t]he responses contain nothing other than a reiteration
of the conclusory assertions, unverified by oath or affirmation, made by
counsel in his April 7th fax.� The Commission notes that in response
to the Show Cause Order, complainant and her attorney provided signed
statements stating that complainant failed to appear on April 7, 2000,
due to a medical emergency. Complainant also submitted three prescription
blanks from Physician A of Kennedy Memorial Hospital which prescribed
two different medications and also advised complainant to stay out of
work for one week.
The Commission notes that in the decision dated June 27, 2000, the AJ
states that complainant did not �request continuance, stay or adjournment
of the hearing for any reason; nor did the message advise that Complainant
would not be attending the hearing the following Monday.� The Commission
finds that the facsimile sent by complainant's attorney on April 7, 2000,
clearly stated that �due to a medical emergency, the Complainant will
not be able to travel to Fort Riley, Kansas for the hearing scheduled for
April 10, 2000.� In addition, we find that the phone call and facsimile
did constitute a request for a stay of the hearing. According to
EEO MD-110, Chapter 7, Section III(D)(16), �[a]n Administrative Judge
may hold a hearing in abeyance in the event that a party is unable to
proceed with the hearing for reasons such as illness, military assignment,
or for other good cause shown.� The AJ in this case did not respond to
complainant's request for a continuance prior to the date of the hearing.
The Commission finds that complainant did provide sufficient evidence
to show good cause for not appearing at the hearing on April 7, 2000.
We find complainant has shown that she was hospitalized at Kennedy
Memorial Hospital on April 6-7, 2000. In addition, we find that Physician
A's note that complainant be excused from work for seven days constitutes
evidence of the severity of her medical condition. Accordingly, we find
that the AJ abused his discretion by dismissing complainant's complaint
for failure to prosecute and failure to comply with his Order.
Accordingly, the agency's decision to dismiss complainant's complaint
is REVERSED and the complaint is REMANDED for further processing in
accordance with the Order below.
ORDER
The agency shall request that the Hearings Unit of the appropriate EEOC
District Office schedule a hearing. The agency is directed to submit
a copy of the complaint file to the EEOC District Office within 15
calendar days of the date this decision becomes final for a decision
from an Administrative Judge in accordance with 29 C.F.R. � 1614.109.
The agency shall provide written notification to the Compliance Officer at
the address set forth below that the complaint file has been transmitted
to the EEOC District Office. After receiving a decision from the EEOC
Administrative Judge, the agency shall issue a decision in accordance
with 29 C.F.R. � 1614.110.
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
December 28, 2001
__________________
Date