0120120299
11-02-2012
Gertrude D. Coleman, Complainant, v. Tom J. Vilsack, Secretary, Department of Agriculture (Food Safety and Inspection Service), Agency.
Gertrude D. Coleman,
Complainant,
v.
Tom J. Vilsack,
Secretary,
Department of Agriculture
(Food Safety and Inspection Service),
Agency.
Appeal No. 0120120299
Hearing No. 420-2011-00100X
Agency No. FSIS-2010-00110
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated September 22, 2011, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the following reasons, the Commission REVERSES the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Food Inspector, GS-1863-07 at the Agency's Jackson, Mississippi District Office in Tuscaloosa, Alabama.
Complainant filed a formal complaint dated February 16, 2010, alleging that the Agency subjected her to discrimination on the bases of race (African-American), age (59), and in reprisal for prior protected EEO when:
1. On November 27, 2009, Complainant was constructively discharged by being forced into an early retirement;
2. On November 20,2009, Complainant was counseled and threatened with further disciplinary action;
3. On October 14, 2009, Complainant's supervisor told her to "watch [her] mouth;"
4. On June 26, 2009, Complainant received a letter of caution;
5. On unspecified dates, Complainant's coworker harassed and intimidated her in an unspecified manner; and
6. On unspecified dates, Complainant's complaints to her supervisor regarding the coworker harassment were ignored.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing. On July 25, 2011, the AJ issued an Order dismissing Complainant's request for a hearing. Specifically, the AJ found that Complainant had not complied with her March 7, 2011 Acknowledgment and Order, which instructed Complainant to submit an itemized list of damages, a witness list, all evidence on which a claim of compensatory damages would be based, and an outline of the facts. The AJ noted Complainant was given 75 days to comply with certain portions of the Order, and the Acknowledgment and Order informed that "a failure, in the absence of a timely request for an extension, to respond to the order, would be considered an abandonment or a waiver of his/her request for a hearing." At the time of her Order, the AJ noted that Complainant had not submitted any of the information described, nor has she requested an extension of time, within which to provide such information. The AJ remanded the case back to the Agency for issuance of a final decision.
On September 22, 2011, the Agency issued a final decision dismissing Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(7), for failure to cooperate. The Agency found that Complainant failed to respond to the AJ's request for discovery. The Agency stated Complainant was given ample time to respond to the items requested by the AJ; however, she failed to provide any of the requested items and failed to request an extension of time in which to submit the items. Thus, the Agency found Complainant's failure to cooperate shows a blatant disregard for the EEO process and it dismissed Complainant's complaint.
ANALYSIS AND FINDINGS
The AJ issued a dismissal of Complainant's hearing request as a sanction in this case. The AJ ordered that the Agency issue a final Agency decision. The Agency then issued a decision dismissing Complainant's complaint for failure to cooperate. On appeal, Complainant does not challenge the AJ's dismissal of her hearing request.
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 for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 7, 9-10 (1999). 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.
Upon review, we find that the Agency erred in not issuing an appropriate final decision on the merits of the complaint. Given that the Agency conducted a full investigation of the complaint, we find that the appropriate process here was to return the complaint to the Agency to issue a final decision on the merits based on the existing record. We find that the record as it was developed in the investigative process is sufficient upon which to base a decision. Therefore, we shall remand the matter so that the Agency may issue a decision in accordance with 29 C.F.R. � 1614.110(b).
CONCLUSION
Accordingly, the Agency's decision dismissing the complaint is REVERSED and the complaint is REMANDED to the Agency for further processing in accordance with this decision and the Order herein.
ORDER
Within 60 calendar days from the date this decision becomes final, the Agency shall issue a final decision on the complaint 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 (K0610)
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 77960, Washington, DC 20013. 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 (M0610)
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), at 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 77960, Washington, DC 20013. 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 (R0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
November 2, 2012
__________________
Date
2
01-2012-0299
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120299
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