01A20756_r
03-27-2003
Gil R. Valencia, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Gil R. Valencia v. Department of Justice
01A20756
March 27, 2003
.
Gil R. Valencia,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A20756
Agency No. I-99-H049
Hearing No. 100-A0-7789X
DECISION
Complainant filed a timely appeal with this Commission from an agency
final order dated September 12, 2001, dismissing his 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.
The record reveals that complainant was employed as a GS-1801-12/10,
Immigration Officer, at the American Embassy in New Delhi, India.
In his formal complaint, complainant alleged that he was subjected to
a hostile work environment based on race and national origin.
The agency accepted complainant's complaint for investigation and upon
completion of the investigation, complainant was informed of his right to
request a hearing before an EEOC Administrative Judge (AJ). Thereafter,
complainant requested a hearing before an AJ.
The record reflects that a hearing was scheduled before the AJ in
Washington, D.C. on June 19, 2002. On July 6, 2001, 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).<1> The AJ found that
complainant failed without good cause shown to appear at the scheduled
hearing. On September 12, 2001, the agency issued a final action
implementing the AJ's decision.
Complainant makes no new contentions on appeal. The record, however,
contains an email from complainant to an agency official, dated June
20, 2001. Therein, complainant acknowledged that he was to attend a
hearing in Washington, D.C., but that he was unable to appear because
he received the information regarding the hearing only a day before
it was scheduled. Complainant noted that the notice of hearing was
sent to a hotel where he was temporarily residing; and that he did not
�receive the cc:mail that was reportedly sent to [him] notifying [him]
about the place of the hearing.�
On appeal, the agency argues that complainant's assertion that he was not
informed of the hearing date, time and place for his complaint was false.
The agency further states that by an AJ's scheduling order dated March 29,
2001, and by a May 23, 2001 letter sent to complainant by the AJ (that
confirmed matters discussed during a pre-hearing telephone conference),
complainant was fully informed complainant that the hearing would take
place at the agency's Immigration and Naturalization Service (INS)
headquarters in Washington, D.C. on June 19, 2001.
The agency further noted that complainant had asserted that he had
not been informed of the room location for the hearing or of travel
arrangements. The agency argues, however, that complainant did not raise
any questions regarding travel during the pre-hearing conference. The
agency further argues that at complainant's request, agency counsel faxed
a letter informing the AJ and complainant of the hearing room location,
on June 11, 2001. The agency noted that the fax was transmitted to a
hotel fax number provided by complainant. In support of this argument,
the agency submits a copy of an agency fax transmission identifying
the recipients as the AJ and complainant, with a phone number beneath
complainant's name, containing an �876" prefix.<2> The Comments portion
of the fax transmission is identified as �status letter ICO [Complainant]
v. INS. No other documents are appended to this fax transmission.
An AJ has 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. See Hale v. Department of Justice, EEOC Appeal No. 01A03341
(December 8, 2000).
Here, complainant asserts that he was unable to attend the hearing
because he had received the notice for the hearing only a day before it
was scheduled. On appeal, the agency rejects complainant's argument,
and asserts that complainant was apprised of the particulars for the
hearing well in advance of the hearing date through an AJ scheduling
order dated March 29, 2001,
and a letter sent by the AJ on May 23, 2001, which fully informed
complainant that a hearing would take place at INS headquarters in
Washington, D.C. on June 19, 2001.
However, the record in this case contains no copy of the scheduling
order dated March 29, 2001, or the AJ's letter of May 23, 2001; or
any evidence that complainant was in receipt of this correspondence.
The Commission finds that there is insufficient evidence in the record
to warrant the dismissal of complainant's complaint.
Accordingly, the agency's final action is REVERSED, and the complaint
is REMANDED to the agency for further processing in accordance with the
ORDER below.
ORDER
The agency shall request that the Hearings Unit of the EEOC �s Washington
Field Office schedule a hearing. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (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 Hearings Unit. 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
March 27, 2003
__________________
Date
1Although complainant had been employed
in India at the time that the alleged discriminatory events occurred,
record reflects that a copy of the AJ's Decision and Order was sent to
complainant at an agency office in Kingston, Jamaica.
2The Commission notes that the �876" phone prefix is a calling code for
the nation of Jamaica.