01A05338_r
07-30-2001
Yvonne L. Kelsey, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Yvonne L. Kelsey v. Department of the Army
01A05338
July 30, 2001
.
Yvonne L. Kelsey,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A05338
Agency No. AUGAF090808I0110
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated July 11, 2000, dismissing her 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. In her
complaint, complainant alleged that she was subjected to discrimination
on the bases of race and sex when she was denied a performance award
for the period May 1, 1997, through April 30, 1998.
The record indicates that after the agency accepted and investigated
the above-stated complaint, complainant was provided a copy of
the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On May 25, 2000, the AJ issued an Order
mandating that complainant and the agency submit prehearing statements
within fifteen days (with their requests for witnesses or desire to
proceed without witnesses), and advising complainant that failure to
comply may result in cancellation of the hearing and the dismissal
of the complaint. The Order was received by complainant's attorney,
but neither complainant nor her attorney responded. A day prior to a
scheduled prehearing conference, complainant's attorney withdrew his
representation, and the prehearing conference was then canceled due to
complainant's failure to submit the required information. On June 14,
2000, the AJ issued an Order to Show Cause why the complaint should
not be dismissed due to complainant's failure to abide by the May 25,
2000 Order. On June 20, 2000, complainant responded to the Show Cause
Order, stating that she was �under the impression� that she was not
required to submit further information.
On June 28, 2000, the AJ dismissed the complaint, finding that complainant
had not shown cause why her complaint should not be dismissed.
Although the AJ did not cite the regulation he was relying upon for
dismissing the complaint, the Commission finds that the AJ was most
likely relying on 29 C.F.R. � 1614.109(f)(3) to sanction complainant.
The agency's final action implemented the AJ's decision.
Upon review of the record, we find that complainant's complaint
was improperly dismissed, and we reverse the agency's final action
and remand the complaint to the agency for a decision on the merits.
An AJ has the authority to sanction a party for failure without good
cause shown to fully comply with an Order. Here, complainant's failure
to submit prehearing statements and puzzling explanation for not doing
so does not rise to the level of contumacious conduct. Accordingly, we
find that the AJ abused his discretion in issuing so severe a sanction
as dismissal when a lesser sanction would have been appropriate.
Specifically, we find that the AJ should have considered complainant's
conduct as a sufficient reason to cancel her request for a hearing
and the AJ should have remanded the complaint to the agency. See Reed
v. United States Postal Serv., EEOC Appeal No. 01A05039 (Jan. 3, 2001).
Therefore, the agency's adoption of the agency's decision was improper.
The appropriate action for the agency to have taken should have been to
issue a decision on the merits of the complaint (without a hearing). Id.
Accordingly, the agency's final action is REVERSED and this complaint
is REMANDED to the agency for further processing in accordance with this
decision and the Order below.
ORDER
Within sixty (60) calendar days from the date this decision becomes
final, the agency shall take final action in accordance with 29 C.F.R. �
1614.110. A copy of the agency's final decision must be sent to the
Compliance Officer referenced herein.
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
July 30, 2001
__________________
Date