01A03968
08-12-2002
Ernestine T. Gladden, Complainant, v. Donald L. Evans, Secretary, Department of Commerce, Agency.
Ernestine T. Gladden v. Department of Commerce
01A03968
08-12-02
.
Ernestine T. Gladden,
Complainant,
v.
Donald L. Evans,
Secretary,
Department of Commerce,
Agency.
Appeal No. 01A03968
Agency No. 98-53-00980
Hearing No. 100-99-7767X
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts the complainant's
appeal from the agency's final order in the above-entitled matter.
Complainant maintained that she was discriminated against on the basis
of her race (African American) when she: (1) was not assigned projects,
was overlooked for assignments, and her responsibilities were diminished;
(2) was not provided with necessary on-the-job and formal training that
would provide career enhancement opportunities; and (3) did not receive
a bonus for FY 1997.
At the conclusion of the investigation, complainant was provided a
copy of the investigative report and requested a hearing before an
EEOC Administrative Judge (AJ). On May 21, 1999, the AJ issued a Notice
Regarding Summary Judgment requiring all parties to respond by July 19,
1999. On July 14, 1999, complainant filed a Motion for Extension in which
she sought an enlargement of the discovery period and an extension of
the deadline to respond. On July 20, 1999, the AJ denied complainant's
request and ordered her to respond by July 27, 1999. In the denial,
the AJ explained that failure to respond could result in the imposition
of sanctions. Complainant sent her response postmarked July 27, 1999.
The AJ did not receive her response until August 6, 1999. On August 4,
1999, the AJ imposed a sanction on complainant by remanding the complaint
to the agency for dismissal in accordance with 29 C.F.R. �� 1614.107
and 1614.109(d)(3).
The agency, believing that there was sufficient information in the
record to render a decision, issued a final agency decision finding
no discrimination.
An AJ has the authority to sanction a party for failure without good cause
shown to fully comply with an order. However, 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. Hale v. Department of Justice, EEOC Appeal No. 01A03341
(December 8, 2000). Complainant's failure to have her materials
in the AJ's office by July 27, 1999, does not rise to the level of
contumacious conduct such as to warrant dismissal of the entire complaint.
If complainant failed to respond to the Notice Regarding Summary Judgment,
then the AJ should have gone forward with either having a hearing or
issuing a summary judgment decision. We find that dismissal under these
circumstances was not appropriate. See Clark v. United States Postal
Service, EEOC Appeal No. 01945228 (February 22, 1996).
Therefore, the Commission concludes that the AJ erred in dismissing
complainant's complaint, and the agency's final action is VACATED. The
complaint is REMANDED to the agency for further processing in accordance
with this decision and the Order below.
ORDER
The above complaint is remanded to the EEOC's Washington Field Office for
scheduling of a hearing. The agency is directed to submit a copy of the
complaint file to the Hearings Unit of the Washington Field Office within
fifteen (15) calendar days of the date this decision becomes final. 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 Hearings Unit. Thereafter, the Administrative Judge shall issue
a decision on the complaint in accordance with 29 C.F.R. 1614.109 et
seq., and the agency shall issue a final action 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
_____08-12-02_____________
Date