Decisions, Final Board Decisions

OFFICE OF COMPLIANCE

LA 200, John Adams Building, 110 Second Street, S.E.

Washington, DC 20540-1999

_________________________

ANN ROLLINS,

 Appellant,

 v. Case No. 03-HS-105(CV, AG)

 Date: December 23, 2004

OFFICE OF THE CLERK OF

THE HOUSE OF REPRESENTATIVES 

 Appellee.

_________________________

Before the Board of Directors: Susan S. Robfogel, Chair; Barbara L. Camens, Alan V.

Friedman; Roberta L. Holzwarth; Barbara Childs Wallace, Members.

DECISION OF THE BOARD OF DIRECTORS

On June 14, 2004, Hearing Officer Sylvia Bacon rendered a Decision from the Bench. On

June 21, 2004, Hearing Officer Bacon issued an Order of Judgment. The Hearing Officer

Dismissed the case with prejudice because Complainant failed to comply with procedures

set forth in the rules and statute. The Hearing Officer also concluded that the Complainant

failed to state a claim upon which relief could be granted and, even if, arguendo, a claim

had been stated, Complainant did not establish a prima facie case of age, race or sex

discrimination or prove that the Respondent had unlawfully discriminated against the

Complainant on any basis.

The Board has considered the Decision by the Hearing Officer, the record, the “Petition for

Review by the Board of Directors” submitted by Appellant, and the “Motion to Dismiss

Appeal for Appellant’s Failure to Prosecute” (Motion) and Supporting Brief submitted by

Appellee.1

The Board takes notice that the Hearing Officer applied the appropriate procedural

standards under regulation and case law, as herein noted.2

Under Office of Compliance Procedural Rules (OC Proc. R.) §§ 7.01(12), 7.02(a), a

Hearing Officer is authorized to impose sanctions for a party’s failure to follow an Order

including but not limited to striking part of a complaint and directing judgment against the

non-complying party. Under Office of Compliance Procedural Rules, a Hearing Officer is

authorized to dismiss an action with prejudice for failure to comply with an Order and for

failure to prosecute or defend. OC Proc. R. § 7.02(b)(1) and (2). Federal Rules of Civil

Procedure also provide for involuntary dismissal of actions where a plaintiff fails to

prosecute a case or comply with a court order. Fed. R. Civ. P. 41(b). “Considerations

relevant to ascertaining when dismissal, rather than a milder disciplinary measure, is

warranted include the effect of a plaintiff’s dilatory or contumacious conduct of the court’s

docket, whether the plaintiff’s behavior has prejudiced the defendant, and whether the

deterrence is necessary to protect the integrity of the judicial system.” Bristol Petroleum v.

Harris, 901 F.2d 165, 167 (D.C. Cir. 1990) citing Shea v. Donahue Construction Co., 795

F.2d 1071 (D.C. Cir. 1986). See also Gardner v. United States, 211 F.3d 1305, 1309 (D.C.

Cir. 2000). The court also stated within Gardner, that dismissal is justified “... when there

is some indication that the client or attorney consciously fails to comply with a court order

cognizant of the drastic ramifications.” Gardner, 211 F.3d at 1309 (citing Shea, 795 F.3d at

1078).

Title VII of the Civil Rights Act of 1964, as amended, provides, inter alia, that it is

unlawful for an employer "to fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with respect to his compensation, terms,

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conditions, or privileges of employment, because of such individual's race, color, religion,

sex, or national origin."3

The Age Discrimination in Employment Act (ADEA) of 1967, as amended, provides that

it is unlawful for an employer to “discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s age ....”4

In a discrimination case brought by an aggrieved person pursuant to Title VII of the Civil

Rights Act of 1964, the Complainant bears the burden to initially establish a prima facie

case of discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248

(1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). If a prima facie case is

established, the burden shifts to the Agency to articulate a legitimate, nondiscriminatory

reason for the challenged action. Burdine at 253-4; McDonnell Douglas at 802.

Complainant may then show that the explanation offered by the Agency was not the true

reason, but a mere pretext for intentional discrimination. Burdine at 256; McDonnell

Douglas at 804.

It is not enough to disbelieve the employer's articulated reason. In addition, the fact finder

must believe the Complainant's explanation of intentional discrimination. St. Mary's Honor

Center v. Hicks, 509 U.S. 502 (1993). The ultimate burden of persuading the trier of fact

that the Agency discriminated against the Complainant always remains with the

Complainant. However, a prima facie case and sufficient evidence of the Agency’s pretext

may permit a finding of discrimination, even without additional, independent evidence of

discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct.

2097, 2108-09 (June 12, 2000) (proof of prima facie case and pretext alone usually

sufficient to support a trier of fact’s belief that discrimination occurred).

As noted by the Court, the factual circumstances necessarily vary in discrimination cases.

Consequently, the courts have developed models for certain common situations to assist in

determining whether a prima facie case has been established. See Burdine at 256, n. 6;

McDonnell Douglas at 802, n. 13. Although McDonnell Douglas and Burdine were cases

which arose under Title VII of the Civil Rights Act of 1964, the principles articulated in

those cases are applicable to actions under the ADEA. Cuddy v. Carmen, 694 F. 2d 853,

857-8 (D.C. Cir. 1982), 30 EPD ¶ 33, 024; Sutton v. Atlantic Richfield Co., 646 F. 2d 407

(9th Cir. 1981), 26 EPD ¶ 31, 897; Loeb v. Textron, Inc., 600 F. 2d 1003 (1st Cir. 1979), 20

EPD ¶ 30, 028.

Generally, in order to establish a prima facie case of unlawful discrimination based on age,

race or sex in a selection case, a Complainant must establish that: 1) she is a member of a

protected class; 2) she applied for and was qualified for the position; and 3)

notwithstanding her qualifications, an applicant outside of Complainant’s protected class

was treated differently and selected for the position under circumstances that give rise to

an inference of unlawful discrimination. In establishing a prima facie case of

discrimination based on age, a Complainant must demonstrate that she was 40 years of age

or more at the time of the personnel action at issue and she was treated differently, with

respect to a condition of employment, from a similarly situated person who is outside of

her protected class or is a significantly younger person and in a manner that creates an

inference of discrimination. O’Connor v. Consolidated Coin Caterers Corp., 116 S.Ct.

1307, 1310 (1996).

The Board concludes that based on appropriate rules and precedent, the Hearing Officer’s

Dismissal of the Rollins case was authorized. Procedurally, based on Complainant’s

repeated failures to respond to Respondent and the Hearing Officer, give notice for the

need for rescheduling or seeking an extension of dates for submissions, or comply with the

Office of Compliance Procedural Rules, the Hearing Officer’s Dismissal of the instant case

was justified.

The Board also concludes that based on the evidence, the Hearing Officer correctly

concluded that Complainant failed to establish a prima facie case of sex, race or age

discrimination because she has not demonstrated that a similarly situated person who is not

within her protected classes based on race or age or someone significantly younger was

selected. She also failed to demonstrate, as a female applicant for a position wherein a

male applicant was selected, that decisions were made under circumstances that give rise

to an inference of unlawful sex discrimination since she had not demonstrated that she was

as qualified as the selectee. Complainant’s resume was extremely brief and failed to

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present a detailed description of her qualifications or experience. Comparatively, all

applicants called for interview including the selectee, Mr. Dodge, submitted detailed

multi-page resumes demonstrating their qualifications via specific listings of educational

and professional experiences and their publications by title and name of publication. Based

on the evidence, the Hearing officer concluded that Complainant did not demonstrate that

she was as qualified as others. Accordingly, as the Hearing Officer concluded,

Complainant did not establish a prima facie case of race, age or sex discrimination. She did

not challenge the evidence of record about the selectee or demonstrate that the articulated

reasons presented in Respondent’s Prehearing Brief why applicants other than

Complainant were called for interview and why the selectee was chosen are a pretext for

discrimination. Accordingly, Complainant failed to prove, by a preponderance of the

evidence, that the Respondent unlawfully discriminated against her.

Although the Hearing Officer did not cite the case law that guided her analysis, we have

provided it herein and have viewed the Hearing Officer’s Decision and the relevant law in

arriving at our Decision. We are satisfied that the Hearing Officer applied the correct

regulatory and legal standards in analyzing this case. We are satisfied that the Hearing

Officer’s conclusions are supported by substantial evidence.

Pursuant to § 406(e) of the Congressional Accountability Act and § 8.01(d) of the Office

of Compliance Procedural Rules and Approved Amendments, the Board AFFIRMS the

Hearing Officer’s merits determination finding that Complainant failed to prove that the

Respondent unlawfully discriminated against her. The Board also AFFIRMS the Hearing

Officer’s determination to Dismiss this case for the Complainant’s failure to comply with

procedures set forth in the Procedural Rules and Statute. Since the Hearing Officer’s

Decision is supported by substantial evidence, is legally sound, was not capricious,

arbitrary, an abuse of discretion or otherwise not consistent with law or with required

procedures the Board AFFIRMS the Hearing Officer’s procedural Dismissal and Decision

on the merits and DENIES the Appeal.

It is so ordered.

BY: THE BOARD OF DIRECTORS OF THE OFFICE OF COMPLIANCE

Issued, Washington, DC, December 23, 2004.

1The Board notes that Appellant included in her Petition for review conclusory statements

about the Office of Compliance processing of this matter. Although noted, no action is

deemed necessary based on the lack of specificity and Appellant’s lack of supporting

evidence for her conclusions.

2 Appellant failed to serve her Petition for Review by the Board on the Appellee. She also

failed to submit the Supporting Brief as required by the pertinent Regulations. In

accordance with the Regulations, and the Motion by the Appellee, this case could have

been DISMISSED by the Board. The Board, however, elected to proceed in considering

the Appeal even though it had not been perfected.

342 U.S.C. § 2000e-2.

429 U.S.C. § 621.

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