01A04030_r
08-30-2002
Sherry J. Oshiver, Complainant, v. Gale A. Norton, Secretary, Department of the Interior, Agency.
Sherry J. Oshiver v. Department of the Interior
01A04030
August 30, 2002
.
Sherry J. Oshiver,
Complainant,
v.
Gale A. Norton,
Secretary,
Department of the Interior,
Agency.
Appeal No. 01A04030
Agency No. WGS-98-003, WGS-98-020
Hearing No. 100-99-8139X
DECISION
Complainant appealed to this Commission from the agency's final
action to implement the findings of an EEOC Administrative Judge (AJ).
Complainant alleged that she was subjected to discrimination on the
bases of sex (female) and in reprisal for prior EEO activity when:
From April 9, 1998 through June 5, 1998, complainant was denied the
opportunity to carry out the duties of Acting Chief and was treated
differently than a male employee who had previously acted as the chief;
On or about June 18, 1998 and June 25, 1998, complainant was denied the
opportunity to participate in a detail assignment, whereas a similarly
situated male was allowed to do so;
On or about August 11, 1998, complainant's first-line supervisor failed
to give complainant a proper progress review;
On or about August 21, 1998, complainant's first-line supervisor included
improper documentation in complainant's official records; and
On or about October 7, 1998, complainant's second-line supervisor
denied complainant's request to expunge her records of the improper
documentation.
The AJ dismissed complainant's claims for failure to prosecute,
pursuant to 29 C.F.R. � 1614.107(a)(7). In his dismissal, the AJ
noted that complainant failed to respond to an order requiring her to
submit a brief on the issue of summary judgment within fifteen (15) days.
Alternatively, the AJ found that complainant's claims were appropriate for
summary judgment, and that complainant failed to show that the agency's
legitimate, nondiscriminatory reasoning was a pretext for discrimination.
To dismiss a complaint for failure to cooperate, complainant first must
be provided with a written request to provide relevant information or
otherwise proceed with the complaint. See 29 C.F.R. � 1614.107(a)(7).
The request must propose to dismiss the complaint if complainant fails
to respond within fifteen days of receiving the request, or fails to
address the agency's request in her response. See id. However, if
sufficient information is available, the complaint may be adjudicated
rather than dismissed. See id.
In the present case, the AJ's order was not provided in the record.
Therefore, the Commission cannot determine whether complainant received
notice as required by the regulation. Further, the Commission finds that
sufficient evidence is available to adjudicate the claim on its merits.
Therefore, dismissal for failure to cooperate or prosecute is improper.
Nonetheless, the Commission concurs with the AJ's alternate conclusion.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, the Commission finds that
the AJ's issuance of a decision without a hearing was appropriate,
and a preponderance of the record evidence does not establish that
discrimination occurred. Accordingly, the agency's final action is
AFFIRMED.
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 30, 2002
__________________
Date