0120111411
03-13-2012
Carol Chinsoon, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Carol Chinsoon,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120111411
Hearing No. 570-2010-00015X
Agency No. ARBELVOIR08NOV04856
DECISION
Complainant appeals to the Commission from the Agency’s final decision
dated February 17, 2011, finding no discrimination. For the following
reasons, the Commission AFFIRMS the Agency’s final decision.
BACKGROUND
In her complaint, dated February 5, 2009, Complainant, a Security
Assistant, GS-0086-05, at the Agency Tobyhanna Army Depot, Directorate
of Industrial Risk Management, Tobyhanna, Pennsylvania, alleged
discrimination based on sex (female) when on October 17, 2008, she was
sexually harassed by a male training instructor who suggested twice
that she “lay down” with him in his hotel room and as a result of
her refusing the suggestion her supervisor advised her on October 20,
2008, that her deployment to Iraq had been cancelled. After completion
of the investigation of the complaint, Complainant requested a hearing
before an EEOC Administrative Judge (AJ) on August 28, 2009.
The record indicates that on September 8, 2010, the AJ issued an
Acknowledgment Order. Thereafter, on September 28, 2010, the Agency
sent its Motion to Dismiss, First Request for Production of Documents,
and Request for Response to Written Interrogatories to Complainant’s
address of record. Thereafter, Complainant notified the Agency that she
was deployed and living in Iraq, but would return to the United States
on October 28, 2010, for two weeks. Based on this information, the AJ
scheduled a teleconference on November 1, 2010, and then, postponed
the teleconference to November 10, 2010, which, upon Complainant’s
request, was rescheduled to November 12, 2010. The record indicates
that Complainant retained an attorney on November 11, 2010, to represent
her before the AJ. On November 12, 2010, both Complainant and her
attorney failed to attend the teleconference. On November 12, 2010,
the AJ issued Complainant an Order to Show Cause for her failure to
appear for the November 12, 2010 conference and to respond to the
Agency’s discovery requests and Motion to Dismiss. After a review
of Complainant’s attorney’s response, on November 23, 2010, the AJ
found that Complainant did not demonstrate good cause for not imposing
sanctions and, thus, denied her hearing request and remanded the complaint
to the Agency to issue a final decision. The Agency then issued its
final decision concluding that it asserted legitimate, nondiscriminatory
reasons for its action, which Complainant failed to rebut.
On appeal, Complainant contends that the AJ improperly denied her hearing
request. She acknowledges the fact that although she came home from
Iraq for two weeks, i.e., from October 29 – November 13, 2010, she was
busy with personal matters and medical appointments. Complainant also
acknowledges that she did not realize that she needed to hire an attorney
for her case until the last minute, i.e., on November 11, 2010.
ANALYSIS AND FINDINGS
Denial of Complainant’s 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.
The record clearly indicates that the AJ initially scheduled
a teleconference on November 1, 2010, in order to accommodate
Complainant’s availability in the country. Complainant does not
dispute this. On November 1, 2010, the AJ postponed the teleconference
until November 10, 2010, apparently because Complainant did not respond
to the Agency’s Motion to Dismiss at that time. There is no evidence
that Complainant objected to the rescheduling of the AJ teleconference
to November 10, 2010, nor is there any evidence that she asked the AJ
for an extension to prepare for her response to the Agency’s Motion
to Dismiss. Furthermore, there is no evidence that Complainant asked
the AJ for more time so she could find an attorney to represent her.
On November 10, 2010, Complainant informed the AJ that she could not
attend the teleconference on the same date because she was meeting with
an attorney who she intended to hire. The AJ rescheduled the conference
to November 12, 2010, considering Complainant was leaving the country
on that weekend. Again, there is no evidence that Complainant objected
to this rescheduling or asked for more time. Neither Complainant nor
her attorney attended the November 12, 2010 teleconference. Instead, on
November 12, 2010, Complainant’s attorney notified the AJ that he was
not able to attend the teleconference on the same date and asked the AJ
to adjourn such to a later date. There is no evidence that the attorney
contacted the AJ on November 11, 2010, asking the AJ to reschedule the
teleconference because he was just hired and needed more time to prepare
for the teleconference and to answer the Agency’s Motion to Dismiss.
In his Order to Show Cause for cancelling the hearing request, the
AJ, in addition to referring to Complainant’s failure to attend the
November 12, 2010 conference also referred to Complainant’s failure to
comply with discovery. In response to the AJ’s Order to Show Cause,
the attorney merely reiterated his November 12, 2010 letter, described
above, that he was just retained by Complainant on November 11, 2010,
and he had to attend his previously scheduled trial on November 12, 2010.
Upon review, we find that Complainant’s attorney’s foregoing response
to the Order to Show Cause failed to address in any way the discovery
issue. Based on the foregoing, we find that the AJ did not abuse his
discretion by denying Complainant’s hearing request and remanding the
complaint to the Agency for its issuance of a final decision under the
circumstances shown here.
Sexual Harassment Claim
Complainant alleged that on October 17, 2008, after her pre-deployment
training, she and her male training instructor went out to dinner
and later she stopped by his hotel room to talk to him about her
transportation arrangement to the airport next morning. Complainant
alleged that when she was about to leave his room, the instructor told
her twice that she could “lay down” with him in his hotel room, which
she refused. As a result, Complainant alleged that on October 20, 2008,
her supervisor advised her that her deployment to Iraq had been cancelled
despite the fact that she had previously been ordered to deploy on
October 25, 2008. The training instructor denied the alleged incidents.
The Agency stated that during the relevant time period, Complainant and
three male trainees were at pre-deployment training, Biometric Automatic
Tool (BAT) and the Handheld Interagency Identification Detection Equipment
(HIIDE) training, from September 18 to October 17, 2008, in Arizona.
The Agency stated that all the trainees, including Complainant, were
required to take two exams during the training. The record indicates
that Complainant received 70 percent, which was the passing score,
on the first week test, but failed the second week test, scoring 63
(or 62) percent. On October 20, 2008, Assistant Program Manager (APM)
for the HIIDE program made a decision not to deploy Complainant because
of her poor performance, assessment, and test scores and because her
trainers also told him that she did not possess the technical capability
to be able to operate the HIIDE and BAT independently and would need
additional support and training while deployed. Specifically, the APM
indicated that he had no knowledge of the alleged sexual harassment at
the time of his decision not to deploy Complainant to Iraq.
Complainant claimed that an identified male trainee also failed one
of the tests, but he was deployed. The APM acknowledged that the
male trainee, identified by Complainant, failed the first week test,
scoring 65 percent, but passed the second week test with 73 percent.
The APM stated that he, however, decided to deploy the subject trainee
despite his test score because his trainers determined that although
that male trainee needed additional time on the BAT system, he would
be able to operate independently without additional assistance before
he deployed. The APM indicated that passing the training tests was not
a pre-requisite for deployment. Complainant does not dispute this.
The record indicates that two other male trainees passed the tests,
were considered technically competent, and were deployed.
The record indicates that it was not until October 23, 2010, that
Complainant reported the alleged sexual harassment to her supervisors.
The record indicates that on November 14, 2008, the Agency promptly
conducted an Army Regulation (AR) 15-6 investigation concerning the
alleged sexual harassment. The investigation, however, determined that
no inappropriate conduct occurred.
Based on the foregoing, we find that Complainant failed to show that
she was treated less favorably than a similarly situated employee under
similar circumstances. Furthermore, we find that Complainant failed
to show that the Agency’s action was motivated by discrimination as
she alleged.
CONCLUSION
Accordingly, the Agency’s final decision is AFFIRMED.
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 (S0610)
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 (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
3/13/12
__________________
Date
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0120111411
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120111411