0720070078
08-13-2009
Donald Gryder, Complainant, v. Ray LaHood, Secretary, Department of Transportation (Federal Railroad Administration), Agency.
Donald Gryder,
Complainant,
v.
Ray LaHood,
Secretary,
Department of Transportation
(Federal Railroad Administration),
Agency.
Appeal No. 0720070078
Agency No. 2005-19018-FRA-03
Hearing No. 430-2007-00030X
DECISION
Following its September 5, 2007 final order, the agency filed a timely
appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). 1
The agency requests that the Commission affirm its rejection of an EEOC
Administrative Judge's (AJ) default judgment addressing violations of
Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42
U.S.C. � 2000e et seq. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The agency
also requests that the Commission affirm its rejection of the relief
ordered by the AJ. On September 5, 2007, complainant timely filed his
cross-appeal and motion for enforcement in response to the agency's
rejection of the AJ's decision. For purposes of judicial economy, the
two appeals are consolidated for consideration in the instant decision.
For the following reasons, the Commission vacates the AJ's default
judgment in favor of complainant as a sanction against the agency,
and remands the matter to the agency for further processing.
BACKGROUND
Complainant worked for the agency's Federal Railroad Administration
(FRA) as a Safety Inspector, GS-12, until he was removed in 1997.
Starting in 1999 and continuing, he began applying for various positions
with the FRA for which he was not selected. As a result of not being
selected for these positions, complainant filed numerous complaints,
many containing claims of discrimination.
On February 23, 2005, complainant filed the EEO complaint at issue
in this case. Therein, complainant claimed that he was the victim of
unlawful employment discrimination on the bases of race (Caucasian),
national origin (European), sex (male), color (white), disability, and
in reprisal for prior protected activity when he was not selected for
approximately 160 positions2 throughout the FRA.
At the conclusion of the investigation into his complaint, complainant
requested a hearing before an AJ. On November 24, 2006, the AJ issued
an Acknowledgement Order, directing the parties to jointly define the
issues presented by the complaint, develop stipulations, and discuss
settlement within thirty days. On the same date, the AJ also issued
a separate Scheduling Notice and Order, which directed the parties to
submit a pre-hearing report, and set March 13, 2007 for a pre-hearing
conference and April 3, 2007 for the hearing. The separate Certificates
of Service on the Acknowledgement Order and the Scheduling Notice and
Order both indicate they were mailed by regular mail on November 24,
2006, to complainant, the agency's Chief Counsel in Washington, D.C.,
and the agency's Atlanta Regional Director of the Departmental Office
of Civil Rights in College Park, Georgia.
The agency's Office of the Chief Counsel in Washington claims that it
received its copy of the Acknowledgement Order on December 15, 2006,
approximately three weeks after it was mailed.3 However, the Office of
Chief Counsel insists it never received a copy of the Scheduling Notice
and Order. On December 19, 2006, the agency's Office of Chief Counsel
filed a Designation of Agency Representative with the AJ, along with
a Motion to Stay Discovery and All Proceedings. In its Designation of
Agency Representative, the agency noted that mail irradiation procedures
in Washington, D.C. cause severe delays in mail delivery, and requested
that all documents in the case be sent to the agency's representative
by facsimile, electronic mail or non-U.S. mail delivery service.
In its December 19, 2006 Motion to Stay Discovery and All Proceedings,
the agency requested that the AJ stay all proceedings in this case
pending a ruling on complainant's active Title VII case in Federal
District Court for the Northern District of Georgia. See Gryder
v. Mineta, 1:00-CV-02437-ECS (filed Sept. 19, 2000). In that case,
the agency asserted that, on June 27, 2006, complainant had accepted the
agency's offer of a global settlement. The agency also indicated that,
in pertinent part, the agreement contained a provision that complainant
would withdraw all pending complaints against the agency in any forum,
including EEO complaints in exchange for a payment of $925,000. In its
motion, the agency argued that since the instant EEO complaint was filed
before the settlement agreement, it would be covered by the withdrawal
provision. However, the agency noted that complainant later dismissed his
legal counsel in the federal court case and attempted to repudiate the
settlement agreement. The agency represented, and the record supports,
that on August 24, 2006, it filed in federal court a Motion to Enforce the
settlement agreement and a Motion for Specific Performance. The agency
indicated that it was still awaiting the Court's ruling on this matter.
Therefore, in its motion before the AJ, the agency urged the AJ to
stay all proceedings until the Court determined whether or not the
settlement agreement was binding on complainant, which would require
complainant to withdraw his complaint and eliminate the necessity for
further administrative adjudication of the complaint.
The AJ never ruled on the agency's motion. In the meantime, complainant
filed numerous motions with the AJ, including various discovery requests.
The agency concedes to having received copies of complainant's filing.
However, the agency did not respond to any of complainant's requests.
The agency also did not appear at the pre-hearing conference on March 13,
2007, and did not submit a pre-hearing report, including witness lists,
as required in the Scheduling Notice and Order. The record indicates
that the AJ called the agency's Office of Chief Counsel on the day of
the pre-hearing conference and left a telephone message. The message
was returned by the Chief Counsel, who informed the AJ that his office
had not been aware of the scheduling of the pre-hearing conference.
On March 16, 2007, following the AJ's telephone call to the agency, the
AJ issued an Order to Show Cause why the agency should not be subject to
sanctions for its non-compliance with his orders. The agency's Office
of Chief Counsel responded on April 2, 2007, within the 15-day response
period. In its response, the agency reiterated the arguments it raised
in its Motion to Stay Discovery and All Proceedings. Specifically,
it maintained that due to mail delays outside of its control and
as a consequence of heightened mail security concerns following the
anthrax scare, it did not timely receive the AJ's November 24, 2006
Acknowledgement Order until December 15, 2006. Nevertheless, the agency
stated that, on December 19, 2006, it immediately filed a Motion to Stay
Discovery and All Proceedings following the global settlement complainant
agreed to in federal district court. The agency's representative denied
receiving a copy of the Scheduling Notice and Order that appears to have
been issued separately, albeit on the same day, from the Acknowledgement
Order. The agency asserted that because it never received the Scheduling
Notice, it never knew about the Pre-Hearing Conference scheduled for
March 13, 2007, and so did not attend. The agency further explained
in its Response to the Order to Show Cause that it only learned of
the Pre-Hearing Conference from the AJ's telephone call to the agency,
after the conference had taken place.
On July 24, 2007, the AJ, as a sanction to the agency, issued a default
judgment in complainant's favor. In his decision, the AJ stated that
the "agency did not respond" to his March 16, 2007 Order to Show Cause.
The record, however, indicates that the AJ was mistaken in this regard.
The record contains evidence that the agency sent its response to the
Order to Show Cause to the AJ by facsimile on April 2, 2007, with a
notation that a hard copy would follow.4 In addition, the record contains
documentation indicating that a package (purportedly containing the hard
copy of the agency's response) was sent to the AJ by the agency counsel
on April 3, 2007 by FedEx Priority Overnight, and that the package was
signed for by the AJ's office on April 4, 2007 at 10:05 a.m.
In reaching his decision to impose a default judgment in favor of
complainant, the AJ noted that the agency was served with a copy of the
Scheduling Notice and Order in which the parties were directed to submit
a pre-hearing report by March 12, 2007, that included a statement of
the issues, a statement of the facts to be proven at hearing, a list of
potential stipulations, a proposed witness list, and an exhibits list.
The Scheduling Notice and Order also set a pre-hearing conference for
March 13, 2007, and ordered the parties' participation. However,
the agency failed to submit a pre-hearing report or appear at the
pre-hearing conference. As already noted, the AJ also noted that he
provided the agency with an opportunity to show cause why he should
not impose a default judgment, but the agency again failed to respond.
Therefore, he entered default judgment in favor of complainant.
As part of his decision, the AJ ordered the agency to: (1) offer
complainant the position of Regional Administrator, GS-15, in Fort Worth,
Texas, retroactive to August 18, 2003, or a substantially equivalent
position;5 (2) pay complainant an appropriate back pay award with
interest; (3) provide complainant other entitlements to make him whole,
including, the overtime pay commensurate to a current employee holding
the position of Regional Administrator in Fort Worth, Texas, 401K
contributions, awards, leave and appropriate performance appraisals;
(4) pay complainant compensatory damages in the amount of $100,000; and
(5) pay complainant out-of-pocket expenses not to exceed $7,500 upon
being proven.
On October 1, 2007, the United States District Court for the Northern
District of Georgia denied the agency's motion to enforce the settlement
agreement.
In its Order, the Court stated that complainant had filed a civil
action on July 28, 2000, claiming twelve violations of federal law and
five violations of state tort law; that most of the federal claims were
dismissed in June 2001, leaving only the state law claims, and the federal
claims for employment discrimination and retaliation. The Court further
found that summary judgment was subsequently granted for complainant's
age and sex discrimination claims, as well as the state tort claims.
However, the Court noted that a single remaining claim, for unlawful
retaliation under Title VII, resulted in a jury verdict for complainant.
This remaining claim was the matter that was the subject of settlement
negotiations.
CONTENTIONS ON APPEAL
The agency timely filed a final order rejecting the AJ's default judgment
and an appeal requesting that the Commission reverse the AJ's decision.
On appeal, the agency reiterates arguments that it raised before the
AJ in its Motion to Stay Discovery and All Proceedings and in its
Response to the Order to Show Cause. Specifically, the agency argues
that factual and legal flaws to the default judgment warrant a reversal.
First, regarding the agency's argument regarding factual flaws of the
AJ's decision, the agency asserts that the AJ's decision indicates that
he based the default judgment, in part, on his assertion that the agency
did not respond to his Order To Show Cause. However, the agency provided
documentary evidence that it argues proves its response to the order was
delivered to the AJ's office within the required 15-day response time.
The agency further argues that its response, had the AJ considered it,
would have demonstrated good cause for not sanctioning the agency.
Echoing its response sent to the AJ, the agency, addresses its problems
with mail delivery, indicates that its legal representative, its Office
of Chief Counsel, received the Acknowledgment Order late, and that
the office never received a copy of the Scheduling Order. The agency
acknowledges that, in retrospect, while it would have "been in the best
interests of the agency to file responses to [complainant's] filings, it
was not required to do so."6 The agency argues that sanctions are only
appropriate for failing to respond to an AJ's order, and not to another
party's requests. Agency's Brief in Support of Appeal at 12, n.11.
Regarding the legal flaws in the AJ's default judgment, the agency
maintains that the AJ's decision cannot be upheld given the AJ's failure
to rule on the agency's Motion regarding the existence of a settlement
agreement in which complainant agreed, inter alia, to forgo the matter
raised in the instant complaint, in exchange for $925,000.00. The agency
asserts that to conduct a hearing on over 150 non-selections, when
there was a possibility that a settlement agreement had been reached,
is a "perversion of judicial economy." Moreover, the agency argues
that a default judgment is an improper sanction, if any sanction at all
should apply, because a default judgment is too severe. The agency
argues that its conduct was not willful or contumacious, but rather
inadvertent. Moreover, the agency argues that it has demonstrated good
faith in promptly responding to the AJ's orders upon receiving them.
For instance, the agency asserts that it immediately filed a Motion
to Stay Discovery and All Proceedings and the Response to the Order
to Show Cause. The agency notes Commission precedent finding that
agency inadvertence is an inappropriate basis for a default judgment.
The agency suggests that if we find a sanction is indeed in order,
it must be a tailored, less severe sanction addressing the offense.
Complainant responds to the appeal, arguing that the AJ's default
judgment must be affirmed because the agency's conduct has been willful.
The Acknowledgement Order directed the agency to work with complainant in
carrying out discovery, but the agency flouted these orders and ignored
complainant's fourteen motions.7
ANALYSIS AND FINDINGS
The Commission has exercised its inherent authority to enforce its Part
1614 regulations by ordering sanctions in response to various violations.
See, e.g., DaCosta v. Department of Education, EEOC Appeal No. 01995992
(February 25, 2000) (Commission issued sanctions against agency for
failure to complete timely investigation); Matheny v. Department
of Justice, EEOC Request No. 05A30373 (April 21, 2005) (upholding a
decision that affirmed an AJ's imposition of sanctions finding in favor
of complainant as to all claims for the agency's failure to provide
investigative reports). EEOC Regulation 29 C.F.R. � 1614.109(f)(3)
authorizes EEOC administrative judges to take one of four specified
actions, including issuing a decision fully in favor of the opposing
party, or any such other actions deemed appropriate, where an agency
or its employees fails without good cause shown to respond fully and
in timely fashion to an order of an administrative judge, or requests
for the investigative file, for documents, records, comparative data,
statistics, affidavits, or the attendance of witnesses.
Sanctions must be tailored in each case to appropriately address the
underlying 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. See Gray v. Department of Defense, EEOC
Appeal No. 07A50030 (March 1, 2007); Hale v. Department of Justice, EEOC
Appeal No. 01A03341 (December 8, 2000). Factors pertinent to "tailoring"
a sanction, or determining whether a sanction is, in fact, warranted,
would necessarily include the extent and nature of the non-compliance,
to include the justification presented by the non-complying party;
the prejudicial effect of the non-compliance on the opposing party;
the consequences resulting from the delay in justice, if any; and,
the effect on the integrity of the EEO process. Id. The issue in this
appeal is whether the AJ properly exercised his sanctions authority in
this case by issuing a default judgment in favor of complainant.
The question to be determined is whether the agency's failures in
this matter were of such an extent and nature to justify the action
of a default judgment. The situation in this case is an unusual one.
The Commission determines that the agency, as well as the AJ, missed
opportunities that would have avoided the extreme sanction that the AJ
ultimately imposed. A discussion of the actions of both in this regard
is elucidated herein.
The agency
First, the Commission recognizes that the agency is not unfamiliar with
the imposition of a default judgment as a remedy. Approximately one year
prior to the AJ's transmission of the November 26 Acknowledgement Order
and Scheduling Order and Notice, discussed above, the Commission reversed
an agency's final order rejecting an AJ's default judgment in favor of
another complainant. Elston v. Department of Transportation, EEOC Appeal
No. 07A50019 (October 18, 2005). In Elston, the Commission rejected an
agency argument that mail delivery problems excused non-compliance with
various AJ orders. Moreover, the Commission found that the agency had
not shown that it made any additional "proactive efforts to ensure that
it would receive notifications in the future from the AJ." Specifically,
we note that the Commission expressly stated that there was no indication
that "the agency contacted the AJ either to inquire if she had issued
any additional orders or notices the agency needed to be aware of,
or to obtain copies of such orders or notices."
Accordingly, in the instant case, we find disingenuous the agency
assertion that after its filing a Motion to Stay in December 2006, it
was merely awaiting the AJ's ruling on its Motion to Stay, and thereupon
only first learned of the pre-hearing conference on the date it was
scheduled, in March 2007. The Commission notes the context of the
agency's passivity from December 2006 to March 2007; its prior notice
in Elston of the Commission not being persuaded of its mail delivery
problem, in that instance, for non compliance with various AJ orders;
and the Commission's prior admonishment in Elston, to take proactive
measures to ensure receipt of AJ notifications.
We note, moreover, that the agency readily acknowledges that from
December 2006 through March 2007, it failed to respond to numerous filings
submitted by complainant. The agency concedes that it had an obligation
to continue the processing of the instant case, and that it may have
been in its best interests to file responses to complainant's filings.
However, the agency stated that it was not required to do so, and indeed
did not.
Finally, the record establishes that another part of the agency, the
Atlanta Regional Office of the Departmental Office of Civil Rights,
did receive the Scheduling Notice and Order by no later than December
13, 2006, when it transmitted a copy of said order by facsimile to the
FRA's Office of Civil Rights. 8 No evidence indicates that the FRA's
Office of Civil Rights passed the order on to the Chief Counsel's office.
Nevertheless, the record establishes that responsible agents within the
agency, although likely not its legal representative, received the
AJ's Scheduling Notice and Order within sufficient time to allow the
agency's compliance with the order. As a result, the Chief Counsel's
office, apparently unaware of the order, failed to submit the required
pre-hearing report or attend the pre-hearing conference.
The AJ
In its December 19, 2006 Motion to Stay Discovery and All Proceedings,
filed in response to the AJ's November 24, 2006 Acknowledgment Order,
the agency requested that the AJ immediately stay all proceedings in this
matter until the Federal Court ruled on the enforceability of a settlement
agreement that required complainant's commitment to withdraw all pending
EEO complaints, including the instant one. The record establishes that
the AJ never ruled on this motion. An AJ ordinarily has broad discretion
in the conduct of a hearing and its related proceedings. However, in
this instance, the AJ should have ruled on the agency's motion given the
burdens of litigating a complaint involving over 150 non-selections and
the fact that the settlement agreement, if determined by the Court to
be enforceable, would require complainant to withdraw his complaint.
Had the AJ promptly ruled on this motion, it is unlikely that the
subsequent events that led to the default judgment would have occurred.
Even if the AJ had denied the motion, it would have put the agency on
notice of the need to proceed with the case.
In this context, we find that the AJ abused his discretion by choosing
to impose the ultimate sanction against the agency - issuing a decision
fully in favor of complainant pursuant to 29 C.F.R. � 1614.109(f)(3)(iv).
The agency argued in its response to the AJ's Order to Show Cause,
a response which the AJ appears to have mistakenly believed he did not
receive, that its legal representative never received the AJ's Scheduling
Notice and Order which contained the provisions for the pre-hearing report
and conference. That may well be true in light of evidence presented
concerning the agency's Washington, D.C. facility was having with its
mail.
After careful weighing of the evidence of record, as well as the
arguments of the parties, we conclude the sanction selected by the AJ
was too harsh. The decision to impose a default judgment on July 24,
2007, where the Federal Court had not yet decided whether the matter
before it was settled, was premature and not in the interests of justice.
As already noted, had the AJ ruled on the agency's motion to stay, the
events which led to the default judgment may well have never occurred.
If the AJ had decided to deny the stay and proceed with the hearing,
he could have selected a more narrowly tailored sanction than default
judgment. As already discussed, the sanction should be specifically
designed to serve the purpose of deterring the agency from engaging in
similar conduct in the future, without being overly harsh in light of
the nature of the offense. Under the facts of this case, for example,
had the AJ denied the agency's motion to stay and decided to continue
the proceedings, he could have denied the agency the right to file a
motion for summary judgment, as well as any motions for extensions, as
a sanction for its failure to submit the pre-hearing report and attend
the pre-hearing conference.
Moreover, the Commission notes that although the Federal Court denied
the agency motion to enforce a settlement agreement, on October 1, 2007,
complainant's civil action remains pending before the Federal Court.
The Commission notes further that the Federal Court's identification
of the pending matters as a "claim . . . for unlawful retaliation under
Title VII" could well be intertwined with the matter raised in the instant
formal complaint (non-selection for approximately 160 FRA positions).
Taking these factors into account, we conclude that default judgment was
improperly imposed in this case and the AJ should have first ruled on the
agency's motion to stay the proceedings before imposing a sanction. The
motion has never been decided. In the interest of judicial economy
and to expedite the processing of this case on remand, the Commission
will vacate the AJ's decision to issue a default judgment in favor of
complainant for a determination as to whether the matter that remains
pending in the Federal Court may address the same matter that is raised
in the instant complaint. If the civil action is not the same matter as
that raised in the instant formal complaint, the matter shall then be
returned to the AJ for a hearing. If the matter is indeed returned to
the AJ for a hearing, in the interest of judicial economy and to expedite
the processing of this case on remand, the Commission will impose an
alternative sanction, regarding the issuance of summary judgment, as
more fully addressed in our Order.
We believe this lesser sanction is warranted due to the agency's
failure to respond to the scheduling notice, which the agency should
have complied with given that there was no showing that the AJ erred in
sending the notice to the agency at the address provided. We further
note evidence that the agency's Office of Civil Rights did receive the
scheduling order. Finally, we take cognizance of the default judgment
issued in the Elston case a year prior to the issuance of the scheduling
notice in this case in which the Commission informed the agency that
mail delivery problems were no excuse for not complying with the orders
of an AJ. This is particularly true here where the agency was in receipt
of numerous discovery motions filed by complainant and yet took no action
to contact the AJ about its outstanding Motion to Stay All Proceedings
in spite of receiving complainant's motions. For these reasons, we find
that the lesser sanction set forth below appropriate in this case.
In summary, we vacate the AJ's decision to issue a default decision in
favor of complainant, and remand the complaint to the agency in accordance
with the Order below.
ORDER
The agency is ORDERED to take the following action:
1. Within thirty (30) calendar days of the date that it is in receipt of
this decision, the agency is ordered to supplement the record with any
evidence showing whether the matter pending before the Federal District
Court for Northern Georgia addresses the same matter raised in the
instant EEO complaint. The agency shall specifically determine whether
the remaining claim raised in Federal District Court addresses the 160
non-selections raised in complainant's formal complaint. Thereafter,
the agency shall either issue a new final decision regarding the instant
complaint, or continue with the further processing of the complaint as
more fully addressed in point 2 of this Order.
2. If the agency determines that the matter raised in Federal
District Court is not the same matter raised in the instant formal
complaint, the agency shall, within thirty (30) calendar days of
receipt of this decision, submit to the Hearings Unit of the Charlotte
District Office a request for a hearing accompanied with a copy of the
complaint file. During the remanded hearing process, the agency shall
not be permitted to use affidavits or exhibits contained in the
Report of Investigation to support either a motion to dismiss or
a motion for summary judgment, in part or in whole. Moreover, during
the adjudication of the formal complaint, the agency may not rely upon
affidavits contained in the Report of Investigation in lieu of witnesses
who are unavailable to either testify at the hearing or provide testimony
by other means authorized by the AJ.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation verifying
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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:
______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat
_______8/13/09___________
Date
1 The final order is dated August 30, 2007. However, our review of the
record reflects that the final order was not mailed until September 5,
2007. The Commission accepts mailings as timely filed as long as they
are postmarked within the regulatory time limit. Here, the AJ's default
judgment was issued on July 24, 2007. Allowing the five days for delivery
indicated in the Certificate of Service, the agency had until September 7,
2007 to submit its final action and appeal. Although complainant argues
that the agency has manipulated the service dates, we find no proof
in support of such contention. As the agency submitted the appeal on
September 5, 2007, the appeal is timely. Moreover, the agency's appeal
brief is also timely as it was filed on September 25, 2007, twenty days
after filing the Notice of Appeal.
2 These positions are specifically identified in Exhibit 5 of the
agency's Report of Investigation of this matter. The disputed vacancies
were for many different jobs in various locations, ranging in grade
level from GS-7 to GS-15.
3 It appears, however, that the agency's Atlanta Regional Office of
Civil Rights received both the Acknowledgement Order and the Scheduling
Notice and Order sooner. The record contains a copy of a facsimile,
dated December 13, 2006, sent by the agency's Atlanta Regional Office
of the Department of Transportation's Office of Civil Rights to someone
identified only by a first name with a Washington, D.C. fax number.
While not completely clear, the record suggests that the recipient was
the Complaints Manager in the Federal Railroad Administration's Office of
Civil Rights in Washington. The cover sheet to the facsimile indicates
that it was forwarding both the Acknowledgement Order and the Scheduling
Notice and Order.
4 The facsimile record also indicates that the transmission was
successful.
5 The AJ explained that he had complainant select a position from
the over 150 non-selections at issue in his complaint that he wanted to
be awarded. Complainant selected the Regional Administrator position.
6 The agency also states that complainant is a "frequent filer" who
submits many, sometimes un-responsive, documents on an almost daily
basis on multiple active cases in many different forums. In addition,
the agency indicates that complainant has engaged his Congressperson's
assistance in making a multitude of congressional inquiries about
his claims. The agency explains that attempting to respond to every
one of complainant's filings would disrupt significant portions of the
agency's operations and compromise the agency's mission of rail safety.
Therefore, the agency stated that it does not respond to complainant's
filings unless a response is required by regulation or specifically set
out by the fact-finder. Affidavit of Senior Attorney, FRA, Attachment
2 to Agency's Brief in Support of Appeal, at � 7.
7 Complainant also argues that the agency's appeal statement is untimely.
However, as discussed above, we find it timely. See fn. 1, supra.
8 The fax cover sheet states:
"Please accept our apology for you not receiving the attached documents.
Please review the Certificate of Service of each order to note that these
documents are being served to [the Chief Counsel's] office at the FRA.
Per your request, I have attached the Acknowledgment and Order and I
have also included the Scheduling Notice & Order, in the event that your
office did not receive it."
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2
03A60079
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
13
0720070078