01A23422
03-10-2003
Maria A. Gutierrez, Complainant, v. Dr. James G. Roche, Secretary, Department of the Air Force, Agency.
Maria A. Gutierrez v. Department of the Air Force
01A23422
03-10-03
.
Maria A. Gutierrez,
Complainant,
v.
Dr. James G. Roche,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 01A23422
Agency No. ED1M00009
Hearing No. 150-A1-8014X
DECISION
Upon review, the Commission finds that the agency's final action dated
February 20, 2002, dismissing complainant's complaint is improper for
the reasons set forth herein. In her complaint, complainant alleged
discrimination based on national origin (Hispanic) and reprisal when:
(1) from February, 1999 to March, 2000, she was harassed, assaulted
and denied a promotion during the course of her employment with the
agency's Child Development Center, in Hurlburt Field, Florida. The record
indicates that after completion of the investigation of the complaint,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
On February 20, 2002, the AJ issued her order dismissing the complaint
for failure to cooperate. Specifically, the AJ stated that on January
23, 2002, she attempted to conduct the scheduled pre-hearing conference
with complainant; however, complainant was �wholly uncooperative� and
her representative could not be reached. The AJ further indicated that
following the failed pre-hearing conference on January 23, 2002, she
issued an Order Disqualifying Complainant's Representative and a Notice
of Intent to Dismiss for repeated contumacious conduct of the complainant
and her representative. Complainant was informed to show good cause,
in writing, within 15 calendar days from its receipt why the complaint
should not be dismissed for failure to cooperate, but complainant's final
written response was, �please stop the proceeding [as she is without her
chosen representative] and do not call me anymore.� The AJ's Order of
Dismissal became the final action of the agency when the agency failed
to issue a final order within 40-days of the Order of Dismissal.
It is noted that the AJ has the authority to sanction a party for failure
without good cause shown to fully comply with an order. 29 C.F.R. �
1614.109(f)(3). The Commission has held that as a general rule, an
agency should not dismiss a complaint however, when it has sufficient
information on which to base an adjudication. See Ross v. United States
Postal Service, EEOC Request No. 05900693 (August 17, 1990); Brinson
v. United States Postal Service, EEOC Request No. 05900193 (April
12, 1990). It is only in cases where the complainant has engaged in
delay or contumacious conduct and the record is insufficient to permit
adjudication that the Commission has allowed a complaint to be dismissed
for failure to cooperate. See Card v. United States Postal Service,
EEOC Request No. 05970095 (April 23, 1998); Kroeten v. United States
Postal Service, EEOC Request No. 05940451 (December 22, 1994). In the
instant case, the Commission finds that the agency's dismissal of the
complaint on the procedural grounds for failure to cooperate when it had
sufficient information on which to base an adjudication was improper
in the instant case under 29 C.F.R. � 1614.107(a)(7). The Commission
finds that since the investigation of the complaint was completed, the
agency should have issued a decision on the merits of the complaint.
Therefore, under the circumstances, we find that the agency's dismissal
of complainant's complaint for failure to cooperate was improper.
Accordingly, the agency's decision is hereby REVERSED. The complaint
is REMANDED to the agency for further processing in accordance with the
Order below.
ORDER
The agency, within sixty (60) calendar days of the date this decision
becomes final, shall take final action on the merits in accordance with
29 C.F.R. � 1614.110(b). A copy of the agency's final decision must be
sent to the Compliance Officer as referenced below.
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
_____03-10-03_____________
Date