01a03341
12-12-2000
Kathryn E. Hale, Complainant, v. Janet Reno, Attorney General, Department of Justice (U.S. Marshals Service), Agency.
Kathryn E. Hale v. Department of Justice
01A03341
12-12-00
.
Kathryn E. Hale,
Complainant,
v.
Janet Reno,
Attorney General,
Department of Justice
(U.S. Marshals Service),
Agency.
Appeal No. 01A03341
Agency No. M 98-0075
Hearing No. 100-99-8157X
DECISION
On April 3, 2000, Kathryn E. Hale (hereinafter referred to as complainant)
filed a timely appeal from the March 3, 2000, final decision of the
Department of Justice (U.S. Marshals Service) (hereinafter referred to as
the agency) concerning her complaint of unlawful employment discrimination
in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��
791, 794(c). The appeal is timely filed (see 29 C.F.R. � 1614.402(a))<1>
and is accepted in accordance with 29 C.F.R. � 1614.405. For the reasons
that follow, the agency's decision is VACATED.
The issue presented in this appeal is whether the complaint was
properly dismissed when complainant failed to proceed before the EEOC
Administrative Judge.
Complainant contacted an EEO counselor on May 8, 1998, and filed her
formal complaint on August 10, 1998. She complained that the agency
discriminated against her due to her disabilities (deafness, depression
and anxiety), when: (a) on April 3, 1998, she was not nominated for the
Aspiring Leader Program; (b) on April 10, 1998, her request to attend
the National Association of the Deaf Conference (NAD) in San Antonio,
Texas, was denied; and (c) on April 23, 1998, she was charged AWOL
(Absent Without Leave) for three hours.<2>
Following an investigation, complainant requested a hearing before an
EEOC Administrative Judge (AJ). Thereafter, the agency submitted the
case file to the Washington (D.C.) Field Office (WFO) for assignment of
an AJ. On October 6, 1999, the AJ sent the parties an Acknowledgment
Order and Order Regarding Discovery and Summary Judgment (Order), which
provided, inter alia, instruction to submit the attached "Designation
of Representative" form "as soon as possible" and advised that:
Failure to comply with this Order may result in sanctions, including
dismissal or a decision in favor of the opposing party. [citations
omitted]
Complainant may proceed with, or without, legal representation. Failure
to obtain legal representation will not be grounds for postponement of
the proceedings. [bold in original]
Order, pp. 1-2.
The Order also set forth procedures with regard to correspondence and
briefing, settlement discussions, discovery, and summary judgment.
Specifically, the parties were authorized to commence discovery, which
was to be completed within 60 calendar days of the Order, i.e., about
December 6, 1999. In addition, they were directed to respond to the
AJ's statement regarding summary judgment within 15 days of the close
of discovery, i.e., on or about December 21, 1999, that:
After a review of the record, I have determined that matters in this
complaint may not be in material dispute and that I am considering issuing
findings and conclusions without holding a hearing (summary judgment).
[citation omitted]
Order, p. 3.
On November 11, 1999, complainant called the WFO and spoke to another
AJ, indicating that she was searching for an attorney and seeking
an extension of the discovery period. By letter dated November 15,
1999, the AJ assigned to the case reminded complainant that the
Order provided that she may proceed without legal representation,
that failure to obtain such representation was not grounds for delay,
and that a request for extension of time must be submitted in writing.
Further, the AJ urged complainant to comply with the Order, noting she
had not filed a Designation of Representative form, and reminded her that
"Failure to follow them may be grounds for sanctions, including dismissal
of your complaint." (AJ Letter, November 15, 1999).
Complainant took no further action, and, by letter dated January 27,
2000, the AJ cited the complainant's failure to comply with the Order
and found that "this case is herein dismissed due to Complainant's
failure to prosecute." (AJ Letter, January 27, 2000). On March 3,
2000, the agency issued a final order accepting the AJ's dismissal
of the complaint and a ten-page Memorandum in support of its final
order addressing the merits of the complaint. In its Memorandum,
the agency held that the record did not support complainant's claims
of discrimination. Complainant was advised of her rights of appeal,
and she filed the instant appeal with the Commission, without comment.
We must determine whether the complaint was properly dismissed for
�failure to prosecute.� Initially, we note that, in this particular case,
dismissal for failure to prosecute under 29 C.F.R. Section 1614.107(a)(7)
was not available to the AJ. By its express language, this dismissal
basis is intended only where the responding agency has provided the AJ
with proof that:
...the agency provided the complainant with a written request to provide
relevant information or otherwise proceed with the complaint, and the
complainant has failed to respond to the request within 15 days of its
receipt or the complainant's response does not address the agency's
request, provided that the request included a notice of the proposed
dismissal.
These conditions were not present in this case. Therefore, any asserted
dismissal by the AJ under this provision was improper.
We now turn to dismissal as a sanction in this case. In a letter to the
complainant dated November 15, 1999, the AJ notified the complainant that
she had not filed a Designation of Representative form, that failure to
obtain such representation was not grounds for delay, and that failure
to comply with her Order could lead to a sanction, including dismissal
of the complaint. An AJ has the authority to sanction either party
for failure without good cause shown to fully comply with an order.
29 C.F.R. � 1614.109(f)(3); EEOC Management Directive 110 Chapter 7,
pp. 9-10 (1999). Such sanctions may include an adverse inference
that the requested information would have reflected unfavorably on
the party refusing to provide the requested information, exclusion of
other evidence offered by the party refusing to provide the requested
information, or issuance of a decision fully or partially in favor of the
opposing party. Id. However, such 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. 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 Thomas v. Department of Transportation, EEOC Appeal
No. 01870232 (March 4, 1988) (citing McKelvey v. AT&T Technologies,
Inc., 789 F.2d 1518 (11th Cir. 1986)).
In this case, the complainant failed to return a Designation of
Representative form. The record shows that the complainant contacted
the hearings office by phone and informed that office that she was
searching for an attorney and requested more time for discovery. She was
informed that failure to obtain representation was not grounds for delay,
and that extension requests must be made in writing. The complaint was
subsequently dismissed. Dismissal as a sanction under these circumstances
was unduly harsh and constituted an abuse of discretion by the AJ.
There is no evidence that either the hearing process or the responding
agency would have been unduly prejudiced by the complainant's failure
to submit the form. The complainant's actions in this case may evidence
neglect, but not contumacious conduct. Indeed, complainants may proceed
to an administrative hearing before an AJ without the benefit of legal
representation.
For these reasons, we conclude that the AJ's dismissal of the complaint,
adopted by the agency, was improper. The agency's decision adopting
the AJ's dismissal is hereby vacated and the complaint is remanded for
a hearing.
CONCLUSION
Accordingly, the agency's decision is VACATED, and the complaint is
remanded for a hearing.
ORDER
The above complaint is remanded to the EEOC's Washington Field Office
for scheduling of a hearing in an expeditious manner. 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 (K0900)
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)(Supp. V 1993). 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 (M0900)
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:
Frances M. Hart
Executive Officer
Executive Secretariat
__12-12-00_________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2In remedy of her complaint, complainant sought, inter alia, a transfer
from her present unit. It appears that she was reassigned to another
unit in July 1998.