0120162690
03-09-2018
Diedre A.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Diedre A.,1
Complainant,
v.
Dr. David J. Shulkin,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120162690
Hearing No. 470-2015-00147X
Agency No. 200H-0552-2014105012
DECISION
On August 23, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. � 1614.403(a), from the Agency's July 26, 2016 final order concerning her equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission VACATES the Agency's final order and REMANDS the matter for further processing.
BACKGROUND
Introduction
At the time of events giving rise to this complaint, Complainant worked as a part-time Food Service Worker at the Agency Medical Center (VAMC) in Dayton, Ohio.
On September 24, 2014, Complainant initiated EEO contact alleging that the Agency discriminated against her based on reprisal for prior EEO activity (prior EEO complaints between 2002 and 2010) when, since September 24, 2014, management denied Complainant unscheduled hours and overtime hours.
On October 30, 2014, Complainant filed an EEO complaint reiterating the above claim. Subsequently, she attempted to amended her complaint to add four additional incidents of reprisal, so that her complaint alleged retaliation when:
(1) Between 2008 and September 11, 2014, management denied Complainant unscheduled hours and overtime hours.
(2) On July 7, 2011, management reassigned Complainant from the position of Dietary Aide to Dish-room Worker.
(3) On July 7, 2011, management changed Complainant's work location from Building 330 to Building 411.
(4) Since September 24, 2014, management denied Complainant unscheduled hours and overtime hours.
(5) On December 11, 2014 and January 2, 2015, the Agency requested additional information from Complainant regarding her allegations and informed her that greater specificity was required.
In a Notice of Partial Acceptance, dated February 24, 2015, the Agency dismissed (1) and (5) pursuant to 29 C.F.R. �� 1614.107(a)(1) & (a)(7), for failure to state a claim and failure to cooperate. Also, the Agency dismissed (2) and (3) as new matters not like or related to the matter raised during counseling and returned them for processing as a new complaint. The Agency accepted claim (4) for EEO investigation and we will only address that claim in this decision.
Investigation
The Food Services Chief (S1) stated the Dayton VAMC is a campus-style facility with multiple buildings on 385 acres of land. S1 stated that Food Services has food production and food services in four different buildings on campus. She explained that there are eight front-line supervisors who secure unscheduled and overtime hours based on the specific needs of the service. S1 stated that a need could be based on short notice (e.g. an employee calls off work and unscheduled or overtime hours are available in the next ten minutes) or on long notice (e.g. an employee schedules vacation for two weeks in the future and there is more time to plan). S1 stated that seniority, level of wage grade needed, functional area in need, urgency, and voluntary nature on part of employees are all considerations for offering unscheduled or overtime hours. S1 stated that she approves overtime hours based on the service level budget.
S1 noted, in lieu of administrative action based on an internal investigation, management assigned Complainant to a specific building of the service and limited her to working in non-patient care areas only. S1 stated such limitations would impact the number of unscheduled and overtime hours Complainant can receive. S1 stated that she is unaware of or does not recall Complainant's prior EEO activity.
The Assistant Chief for Food Services (S2) stated that Complainant is part-time so she is scheduled for forty hours per pay period. S2 stated that unscheduled hours are any hours above the forty hours per pay period and are at regular pay, and that overtime hours are any hours over eighty hours per pay period and are at overtime pay. S2 added that Food Service Front-line Supervisors rotate daily based on the needs of the service so employees do not have the same direct supervisor. S2 stated that supervisors offer additional hours to employees, who may then accept or decline the offer.
A Food Services Supervisor (S3) stated that coverage for unscheduled and overtime hours is based on the needs of the service and the availability of part-time employees to cover the shift hours. S3 stated, to prevent delay in service to veterans, management typically asks employees working the prior shift to remain for the next shift if it requires coverage. S3 stated, in instances when there is advanced notice of a need for coverage, management considers seniority and availability of employees to work additional hours. S3 stated that Complainant normally declines hours when asked. He also noted that Complainant is limited to working areas without direct patient care due to past conflict with patients and coworkers. In addition, S3 stated that the contact numbers Complainant provided are out of service. He stated that he was unaware of Complainant's prior EEO activity.
The record contains a memorandum, dated July 7, 2011, from S1 to Complainant, permanently reassigning Complainant to Building 411. The memorandum stated that the action follows an investigation regarding "numerous incidents between [Complainant], coworkers, and patients." The reassignment was in lieu of administrative action against Complainant. Complainant's primary duties were in the dish-room in Building 411, between 1:30 p.m. and 5:30 p.m. on her scheduled days, and with the ability to work unscheduled hours in nonpatient areas of Building 411 only. The memorandum states "Employee declined to sign."
Post Investigation
Following the EEO 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) or an immediate final agency decision. Complainant timely requested a hearing, which was held on January 6, 2016. On April 12, 2016, in a Voluntary Hearing Dismissal Order, the assigned AJ dismissed the instant complaint and remanded the matter to the Agency for final action. The AJ stated, during the EEOC hearing for her complaint, Complainant stated that she could not proceed, wanted to go to the Supreme Court, and stood up and moved toward the door to leave the hearing room.2 The AJ found the complaint "voluntarily dismissed" by Complainant, and found her proceeding to leave the hearing as "contumacious conduct."
On July 26, 2016, the Agency issued a final order adopting the AJ's dismissal. The instant appeal from Complainant followed. On appeal, Complainant stated that the AJ tried to compel her to withdraw her case and she did not intend to so. Complainant also alleged that she continues to experience harassment in the workplace regarding denial of hours and other matters.
ANALYSIS AND FINDINGS
An AJ has the authority to impose sanctions on a party that fails to comply, without good cause, with orders or requests. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 7.III.D.10 (Aug. 5, 2015). However, such sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). 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. Id. 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. Id. Dismissal of a complaint by an AJ as a sanction is only appropriate in extreme circumstances, where the complainant has engaged in contumacious conduct, not simple negligence. Id.
In the present case, while at the hearing, Complainant stated "I want to go to a court," "I'm done," and "I can't do this no more," and proceeded to exit the hearing room before the hearing was over. While we agree that Complainant's conduct was improper and warrants a sanction, we find that the AJ abused his discretion when he found her behavior "contumacious" and dismissed Complainant's complaint from the administrative process entirely. A more appropriate sanction is dismissal of Complainant's hearing request and remand to the Agency for a decision on the merits of the case. It is not clear that Complainant understood, in this circumstance, saying she wants to go to court would terminate Commission processing of her complaint. See 29 C.F.R. � 1614.409. However, her conduct shows that she no longer wanted to participate in the hearing.
For these reasons, we conclude that the AJ's dismissal of the complaint from the EEO process, adopted by the agency, was improper. The Agency decision adopting the AJ's dismissal is vacated and the complaint is remanded for further processing.
CONCLUSION
The Commission VACATES the Agency's final decision dismissing Complainant's complaint and REMANDS the matter to the Agency for further action in accordance with the ORDER below.
ORDER
The Agency is ordered to take the following remedial actions:
1. Issue a final action on the merits for the remanded claim (claim 4 - since September 24, 2014, management denied Complainant unscheduled hours and overtime hours), within sixty (60) calendar days of the date this decision was issued. The final action shall be in accordance with 29 C.F.R. � 1614.110(b).
2. Submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision". The report shall include supporting documentation verifying that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
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 in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 9, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The record contains a hearing transcript, dated January 6, 2016, with the testimony that follows, in pertinent part. (The testimony followed the AJ's request for an opening statement from Complainant, and the AJ stopping Complainant's opening statement and informing her of what constitutes such statement and her right to waive providing one.)
[COMPLAINANT]: I mean, come on. You asked me - I'm - I'm just going to drop this right here. Y'all do what y'all want to do. I want to go to a court, the Supreme Court, where I've got a judge and an audience.
(Whereupon, [Complainant] stood up and proceeded towards the door.)
JUDGE []: Okay. [Complainant] --
[COMPLAINANT]: I'm done.
JUDGE []: -- sit down.
[COMPLAINANT]: I can't do this no more. I can't. I can't.
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