05A20655
09-25-2002
William M. Johnson, Complainant, v. Gordon R. England, Secretary, Department of the Navy, Agency.
William M. Johnson v. Department of the Navy
05A20655
September 25, 2002
.
William M. Johnson,
Complainant,
v.
Gordon R. England,
Secretary,
Department of the Navy,
Agency.
Request No. 05A20655
Appeal No. 07A20058
Agency No. 97-00168-004 and 003
Hearing No. 120-98-9710X
DENIAL OF REQUEST FOR RECONSIDERATION
The Agency initiated a request to the Equal Employment Opportunity
Commission (EEOC or Commission) to reconsider the decision in William
M. Johnson v. Department of the Navy, EEOC Appeal No. 07A20058 (February
25, 2002).<1> EEOC Regulations provide that the Commission may, in
its discretion, reconsider any previous Commission decision where the
requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
The agency requested reconsideration of the Commission's previous
decision solely on the issue of whether the Commission has the authority
to impose payment of attorney's fees as a sanction for failing to abide
by an order of an Administrative Judge(AJ). The agency does not contest
that it failed to comply with the AJ's order to appear for a pre-hearing
conference or that it failed to file its pre-hearing statement within
the time prescribed by the AJ.
In the Commission's previous decision, we found that the AJ had the
authority pursuant to our regulations at 29 C.F.R.� 1614.109(f)(3) to
impose sanctions during the conduct of a hearing. In this regulation,
the Commission promulgated, through its rulemaking authority,
certain sanctions for failure of either party to produce documentary
or testimonial evidence during the hearing process. In addition,
the Commission more recently adopted similar provisions after the
required notice and comment period, authorizing the imposition of
sanctions for failure to produce information during the appeal process.
29 C.F.R. �1614.404 (c). See also DaCosta v. Department of Education,
EEOC Appeal No. 01995992 (February 25, 2000) ( the Commission has the
inherent authority to enforce its regulations by issuing sanctions,
here, a partial finding of discrimination for failure of the agency to
conduct an investigation).
After a review of the Agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the request
fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the request. The decision in EEOC
Appeal No. 07A20058 remains the Commission's final decision. There is no
further right of administrative appeal on the decision of the Commission
on this request for reconsideration. The Commission's Order issued in
its previous decision remains in full effect and is set forth below:
ORDER
1. The agency is hereby Ordered to comply with the AJ's Order requiring
that it pay complainant's attorney's fees as a sanction for failing to
appear for a pre-hearing conference and failing to submit a pre-hearing
statement in accordance with the AJ's Scheduling Order.
2. The agency shall submit to the Hearings Unit of the Baltimore District
Office the request for a hearing within fifteen (15) calendar days of
the date this decision becomes final. The agency is directed to submit a
copy of the complaint file to the EEOC Hearings Unit within fifteen (15)
calendar days of the date this decision becomes final. The agency shall
provide written notification to the Compliance Officer at the address set
forth below that the complaint file has been transmitted to the Hearings
Unit. Thereafter, the Administrative Judge shall issue a decision on the
complaint in accordance with 29 C.F.R. � 1614.109 and the agency shall
issue a final action in accordance with 29 C.F.R. � 1614.110.
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
September 25, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Complainant alleged that the agency's request was filed past the 30
day time frame for filing and that it should be dismissed. The agency
provided a date stamped copy of our previous decision indicating its
receipt on March 18, 2002. The Commission's records reflect that the
agency's request was filed on April 17, 2002 within the 30 days allotted
for filing and it is therefore, considered timely filed.