01A02492
08-14-2002
Thurman T. Tyndall, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Thurman T. Tyndall v. Department of Veterans Affairs
01A02492
August 14, 2002
.
Thurman T. Tyndall,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A02492
Agency No. 98-0586
Hearing No. 330-99-8193X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning his equal employment opportunity (EEO) 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, Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq, and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is
accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission AFFIRMS the agency's final order.
BACKGROUND
The record reveals that complainant, a Program Support Clerk, GS-05,
at the VA Medical Center in Houston, Texas facility, filed a formal EEO
complaint on October 31, 1997, alleging that the agency had discriminated
against him on the bases of disability (10%), age (50), and reprisal
for prior EEO activity when he was non-selected for a Program Support
Assistant position, GS-5.
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).
Complainant requested a hearing before an AJ.
On May 13, 1999, complainant filed a letter requesting recusal of
the assigned AJ from conducting the hearing on the above referenced
complaint. By Notice dated June 4, 1999, the AJ informed the parties of
a Prehearing Telephone Conference, scheduled for November 15, 1999, and
the hearing date, scheduled for December 7, 1999. The record reveals that
complainant did not participate in the Prehearing Telephone Conference.
Complainant alleged that he did not participate because he was waiting for
the decision regarding his request of the AJ recusal. On November 22,
1999, the AJ denied complainant's request for recusal. On November 28,
1999, complainant filed a letter in which he insulted and criticized the
assigned AJ and the EEOC process. In his letter complainant stated that
he did not participate in the Prehearing Telephone Conference because he
considered the Prehearing Telephone Conference a waste of his time. He
also acknowledged he was aware of the hearing scheduled for December
7, 1999. At the hearing, the agency representative, the AJ, and the
court reporter appeared, but complainant did not appear.
On December 21, 1999, as a result of complainant's failure to appear
at the hearing and participate in the Prehearing Telephone Conference,
the AJ issued a Show Cause Order. Complainant was directed to submit,
within five days, a written explanation for such failure. The AJ
instructed complainant that failure to provide an adequate explanation
would result in appropriate sanctions, possibly including the issuance
of a default judgment. Complainant failed to submit any response to
the Show Cause Order. Therefore, the AJ issued a Default Judgment, and
concluded that the agency did not discriminate against complainant when
he was not selected for the position of Program Support Assistant, GS-5.
The agency took final action on January 31, 2000, adopting the AJ's
Default Judgment.
On appeal, complainant states that the AJ was biased against him, and
reiterates that he failed to appear at either the Prehearing Telephone
Conference or the Hearing because it would have been a waste of his time.
Complainant contends that he had prior cases with the same AJ and requests
assignment of another AJ for this case. He asserts that the assigned
AJ is �prejudiced against Whites,� and he is �biased to the employer.�
On appeal, complainant also filed a complaint against the AJ, alleging
that the AJ is biased and prejudiced against White people.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. 1614. � 109(f)(3), when a party fails without good
cause shown to respond fully and in timely fashion to an order of an
Administrative Judge, appropriate sanctions may be imposed, including
specifically, issuance of a decision fully or partially in favor of the
opposing party. In circumstances similar to the instant case, we have
previously upheld the issuance of a default judgment in one party's
favor as a sanction for the opposing party's failure to comply with
orders issued by an Administrative Judge. See Magruder v. United States
Postal Service, EEOC Appeal No. 01984820 (March 17, 1999) (upholding
Administrative Judge's issuance of decision in complainant's favor as
a sanction for agency representative's failure to appear timely at the
hearing), request for reconsideration denied, EEOC Request No. 05990640
(March 9, 2001); Pacheco v. United States Postal Service, EEOC Appeal
No. 01970691 (November 25, 1998) (upholding Administrative Judge's
issuance of decision in complainant's favor as a sanction against the
agency, where Administrative Judge found that agency "acted deliberately
in refusing to provide complainant with relevant evidence in order
to prove her claims, in failing to state pertinent objections, in not
filing timely motions, and, most importantly, in refusing to comply with"
discovery orders); Telles v. United States Postal Service, EEOC Appeal
No. 01980931 (November 25, 1998) (upholding Administrative Judge's
issuance of decision in complainant's favor as a sanction for agency's
refusal to reserve a room for the hearing and failure to appear without
good cause); see also Viramontes v. United States Postal Service, EEOC
Appeal No. 01980929 (October 30, 1998).
Applying these authorities, we find that the Administrative Judge
properly granted default judgment in the agency's favor. In reaching
this conclusion, we note that Complainant failed to participate
at the Prehearing Telephone Conference and failed to appear at the
hearing. Moreover, in addition to his further failure to respond to
the Administrative Judge's order to show cause, complainant has never
proffered a good cause or reasonable explanation for his inaction.
Rather, complainant has displayed a non-cooperative attitude in this
case, and a lack of respect for the EEO process. Complainant had the
opportunity to raise the arguments he now presents on appeal, at the
Prehearing Telephone Conference, at the hearing or in response to the
order to show cause, but complainant failed to utilize any of these
opportunities.
Moreover, complainant's contentions regarding the improper conduct of the
AJ are without merit. The record did not reveal any improper conduct
by the AJ, nor that the AJ was biased in this case. The AJ granted
complainant a hearing, and complainant failed to appear. We conclude
that the AJ's failure to find discrimination in complainant's previous
cases, provides an insufficient basis upon which to recuse the AJ.
After a careful review of the record, the Commission finds that the AJ
did not abuse his discretion and that his decision properly summarized
the relevant facts and referenced the appropriate regulations, policies,
and laws.
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's
final order.
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 (S0900)
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. If you
file a request to reconsider and also file a civil action, 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
August 14, 2002
__________________
Date