05A10696_r
09-20-2001
Karen Catella, Complainant, v. Thurman M. Davis, Sr., Acting Administrator, General Services Administration, Agency.
Karen Catella v. General Services Administration
05A10696
September 20, 2001
.
Karen Catella,
Complainant,
v.
Thurman M. Davis, Sr.,
Acting Administrator,
General Services Administration,
Agency.
Request No. 05A10696
Appeal No. 01A05649
Agency Nos. CO-96-0045
CO-96-0057
CO-97-0002
Hearing No. 100-98-8198X
DENIAL OF REQUEST FOR RECONSIDERATION
The complainant initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in Karen
Catella v. General Services Administration, EEOC Appeal No. 01A05649
(April 18, 2001). EEOC Regulations provide that the Commission may,
in its discretion, reconsider any previous Commission decision where
the requesting party demonstrates 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.
See 29 C.F.R. � 1614.405(b).
In the previous decision, the Commission affirmed the agency's final
action adopting the February 14, 2000 dismissal of the captioned
complaints by the EEOC Administrative Judge (AJ) on the grounds
of failure to prosecute pursuant to 29 C.F.R. � 1614.109(f)(3).
The Commission concurred with the findings of the agency and the AJ that
both complainant and her attorney received adequate and repeated notice
of the need to respond to the agency's motions and the AJ's Orders during
the pre-hearing process, yet failed to make any response, providing no
explanation for this failure. The previous decision also acknowledged
the many arguments raised on appeal by complainant, including attorney
negligence, but found that she provided insufficient justification to
excuse her complete disregard for the hearing process. Finding that the
AJ did not abuse his discretion, and properly dismissed the complaints
as a sanction under these circumstances, the Commission affirmed the
dismissal of the complaints.
In her request for reconsideration, complainant argues, in pertinent
part, that her failure to respond was due to attorney negligence,
and that dismissal of the complaints is too harsh a sanction under
these circumstances. Complainant avers that the Commission erred in
failing to consider the evidence of the negligence of her attorney.
In support of her request, complainant submits a copy of a March 3, 2000
letter from her attorney to the AJ in which the attorney explains that
she only recently located a December 1999 letter concerning discovery,
which she claims was unopened due to a misfiling in her office,
and that she intended to respond in her memorandum. The attorney
takes personal blame for the failure to respond, and asks that the
AJ reconsider his dismissal. Complainant further argues that she was
unaware of her attorney's purported failings, and that she unsuccessfully
attempted to contact the attorney regarding the status of her case each
time she received copies of the agency's motions and the AJ's Orders.
Complainant contends that her only successful contact with the attorney
occurred after the agency's first discovery request, in September 1999,
when the attorney told her she contacted both the agency and the AJ
because she considered the request to be redundant.
In responding to the instant request, the agency avers that complainant
cannot justify her disregard for the process by blaming her attorney.
Moreover, the agency argues that complainant received copies of all
the motions and Orders, along with notice that failure to comply could
result in dismissal of the complaints, and all the while she knew,
or suspected, that her attorney was not responding. The agency also
argues that there is no evidence of attorney negligence, noting that
the March 3, 2000 letter is unsigned, and does not clearly identify the
purportedly mislaid discovery motion.
Review of the record shows that the agency made a discovery request in
September 1999, but that neither complainant nor her attorney responded.
Instead, complainant now contends that her attorney considered the request
to be redundant, and did not respond for this reason. Complainant also
contends that the attorney told her that she informed the agency and the
AJ that she considered the discovery request to be redundant, but provides
no evidence to support this statement. Complainant and her attorney then
continued to ignore the agency's October 1999 motion to compel discovery,
as well as the AJ's December 1999 Order granting this motion, and ordering
complainant to provide the materials requested in the discovery motion.
The agency's January 2000 motion requesting sanctions was also ignored
by complainant and her attorney, despite personal service of the motion
on complainant. Complainant submits no argument or evidence to show that
the lack of response was the result of �simple negligence� as opposed
to contumacious conduct based on the assessment that the precipitating
discovery request was redundant. See Hale v. Department of Justice,
EEOC Appeal No. 01A03341 (December 12, 2000). In this
regard, we, like the agency, question the reliability of the March 3,
2000 letter submitted by complainant, and note that it addresses only
a single instance of complainant's non-compliance.
Moreover, we find that complainant knew her attorney was not responding
by virtue of each succeeding motion and Order, and yet chose not to
intervene by filing a response, or even by informally contacting the
agency or the AJ, to alert them to her purported inability to reach her
attorney. While complainant argues that she was entitled to assume that
her attorney was handling the case, we find that her contemporaneous
knowledge of the attorney's non-compliance, under the circumstances
of this case, raises her own lack of a response to more than �simple
negligence.� See Hale, supra.
After a review of the complainant's request for reconsideration,
the previous decision, and the entire record, and for the reasons
set forth above, the Commission finds that the request fails to meet
the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 01A05649
remains the Commission's final decision. There is no further right of
administrative appeal on the decision of the Commission on this request
for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. You have the
right to file a civil action in an appropriate United States District
Court within ninety (90) calendar days from the date that you receive
this decision. 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.
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
September 20, 2001
__________________
Date