0120082538
09-28-2009
Denise A. Brown, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Denise A. Brown,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120082538
Agency No. 0600112
DECISION
Complainant filed an appeal with this Commission from the decision of
an EEOC Administrative Judge1 (AJ) 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. See 29
C.F.R. 1614.109(i).
In her complaint, complainant alleged that she was subjected to
discrimination on the basis of reprisal for prior protected EEO activity
in 2002, when she was harassed and not selected for four positions in
May-June 2006. Following an investigation, complainant requested a
hearing before an EEOC Administrative Judge (AJ). On April 2, 2008,
the AJ dismissed complainant's complaint in its entirety for failure to
prosecute, noting that complainant "has failed to adequately respond to
my Orders and the Agency's discovery requests, failed to appear for a
deposition and failed to settle her case, despite repeated opportunities
to do so."
The Commission's regulation at 29 C.F.R. � 1614.107(a)(7) provides that
an agency shall dismiss an appeal if the complainant does not prosecute
his or her claim. However, the regulation also states that a complaint
may not be dismissed if the record contains sufficient information upon
which a decision may be made. Id.
Upon review, the Commission finds that complainant's complaint was
subject to an investigation in accordance with 29 C.F.R. � 1614.108. A
comprehensive report of investigation was produced and provided to both
complainant and the agency. While it may have been within the AJ's
sound discretion to dismiss complainant's hearing request on the basis
of failure to prosecute, see, e.g., Darlene Rodrigues v. Department
of the Navy, EEOC Appeal No. 0120090682 (April 3, 2009), the record
nonetheless is adequate for the issuance of a final agency decision.
We find, therefore, that the AJ abused his discretion by dismissing the
complaint in its entirety.2
CONCLUSION
The decision of the Administrative Judge is REVERSED and the case is
the REMANDED to the agency for issuance of a final agency decision on
the merits.
ORDER
The agency is ORDERED to issue a final agency decision on the merits of
the complaint within thirty (30) days of the date on which this decision
becomes final.
The agency shall provide a report of compliance, including a copy of
its final agency decision, to the Compliance Officer, as set forth below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
September 28, 2009
Date
1 We note that the agency did not issue a final order within forty days
of its receipt of the AJ's decision. Accordingly, the decision of the
AJ became the final agency action by operation of law forty days after
its receipt by the agency. See 29 C.F.R. � 1614.109(i).
2 Moreover, the Commission expresses its concern that the AJ would cite
complainant's failure to settle her complaint as part of the basis for
dismissal on the merits. While the Commission would encourage the parties
to negotiate settlements where feasible, there is no requirement in our
regulations for a complainant to settle his or her case.
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0120082538
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082538