0120131752
01-08-2016
Eyrn O.,1 Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Eyrn O.,1
Complainant,
v.
Robert McDonald,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120131752
Hearing No. 440-2009-00139X
Agency No. 200J-0556-2008102726
DECISION
Complainant filed an appeal from the Agency's final decision 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the Agency's final decision.
ISSUES PRESENTED
The issues presented are (1) whether an EEOC Administrative Judge's (AJ) decision to dismiss Complainant's hearing request as a sanction for failure to comply with two AJ orders amounts to an abuse of discretion; and (2) whether Complainant established that the Agency's proffered explanation for delaying her interview with respect to Vacancy Announcement No. VM-09MCS-223864 was pretext for discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aid at the Agency's North Chicago Veterans Administration Medical Center in Chicago, Illinois. On May 27, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of sex (female), age, and reprisal for prior protected EEO activity when:
1. On April 15, 2008, she was not selected for the position of Medical Support Assistant (MSA) (STA 08-20-NC);
2. On or about April 15, 2008, she was not selected for the position of MSA (STA 07-79-NC);
3. On or about April 15, 2008, she did not receive notice from Human Resources (HR) for an interview for the position of Secretary, Ambulatory Care, but was told on or about June 26, 2008, that the position was filled;
4. On or about February 4, 2008, HR sent her a notice acknowledging receipt of her application for the position of MSA, but did not send her further information;
5. On or August 26, 2008, she was not contacted or interviewed for the position of Program Support Clerk (STA 08-50-NC) and, on or about August 26, 2008, HR sent her a letter stating she was not selected for the position;
6. She was not interviewed for the position of MSA (STA 08-127-NC), after she received notice from HR on or about October 21, 2008, that she was qualified for the position and would be included in the group of employees to be evaluated;
7. On or about November 15, 2008, she was not selected for the position of Clerk (STA 08-146-NC); and
8. On or about December 3, 2008, she was advised that her interview for the position of MSA (VM 09-MCS-223864) would be delayed.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the Report of Investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing and her hearing request was assigned to an AJ.
On August 27, 2009, the Agency filed a Motion for Summary Judgment. Complainant filed a response to the Agency's Motion on September 12, 2009. On September 25, 2009, the AJ gave Complainant permission to add age as a basis to her complaint.
AJ's Decision
On or before February 17, 2012, Complainant's hearing request was assigned to a second AJ (AJ-2). On March 15, 2012, AJ-2 ordered the Agency to conduct a supplemental investigation on claim 8. Thereafter, on January 14, 2013, AJ-2 issued a decision without a hearing in the Agency's favor with respect to claims 1-7. AJ-2 denied the Agency's Motion for Summary Judgment with respect to claim 8 and scheduled a hearing for January 22, 2013.
On October 2, 2012, AJ-2 scheduled a pre-hearing conference call for December 14, 2012. However, Complainant did not appear for the scheduled pre-hearing conference. As a result, AJ-2 issued Complainant an Order to Show Cause to explain why she did not appear for the pre-hearing conference. Complainant responded to AJ-2's order via e-mail, noting that she was sorry for not attending and was looking for certain information to attend the conference. Complainant also indicated that her work facility had recently relocated and she did not have access to e-mail briefly. AJ-2 found that Complainant's reason failed to show good cause as to why she missed the pre-hearing conference.
The rescheduled pre-hearing conference was held on December 18, 2012. Therein, AJ-2 set the deadline for pre-hearing submissions as no later than December 28, 2012. However, after Complainant failed to meet this deadline, AJ-2 issued Complainant a second Show Cause Order on December 31, 2012, which instructed Complainant to explain why she had not timely filed the pre-hearing submissions. A week later, on January 7, 2013, Complainant responded to the Show Cause Order and submitted her pre-hearing statements.
AJ-2 found that Complainant did not show good cause as to why she failed to submit her pre-hearing submissions by December 28, 2012. AJ-2 found that Complainant's proffered reason, that she had too many documents to review and that she could not make appointments to get the documentation due to the holidays, did not constitute a good cause explanation. AJ-2 noted that pre-hearing submissions were originally due in August 2009, and therefore Complainant should not have waited until December 2012 to collect her exhibits. AJ-2 noted that if Complainant needed more time she should not have waited until the expiration of the deadline. AJ-2 acknowledged that Agency counsel missed some deadlines earlier in the case as well, "but the quality of [Agency counsel's] excuses were better" and the missed deadlines were not so close to the hearing date. Therefore, as a sanction, AJ-2 dismissed Complainant's request for a hearing as to claim 8, and remanded the claim to Agency for the issuance of a final decision.
A month after AJ-2's January 14, 2013, decision, Complainant filed an interlocutory appeal with the Commission on February 14, 2013, specifically contesting AJ-2's decision to deny her hearing request as to claim 8 as a sanction.
Agency's Final Decision
On April 3, 2013, the Agency issued its final decision implementing AJ-2's decision as to claims 1-7, and finding no discrimination as to the remanded claim 8. Specifically, the Agency simply noted that it would fully implement AJ-2's decision with regard to claims 1-7. With respect to claim 8, the Agency found that it articulated legitimate, nondiscriminatory reasons, which Complainant failed to establish were pretext for discrimination. Specifically, the Agency noted that Complainant received an e-mail from management asking her to schedule an interview for the position. The Agency noted that after management sent the e-mail, HR advised management that it must follow the "Rule of Three" policy for scheduling interviews. The Agency indicted that this rule requires that only the top three candidates be initially considered for the vacancy, and if a suitable candidate was not found from the top three, then the next three candidates would be scheduled for interviews. The Agency indicated that its December 2, 2008, Certificate of Eligibles reflected that Complainant's name was not on the list of nine candidates. The Agency additionally noted that management explained that they mistakenly scheduled about 13 to 14 interviews because they were not aware of the "Rule of Three" interview policy. The Agency noted that, after consultation with HR, management delayed interviews with all candidates that were not in the top three, including Complainant.
After receiving the Agency's final decision, Complainant filed an appeal with the Commission, submitting documentation relevant to claim 8. Complainant did not submit a brief or statement with this documentation.
CONTENTIONS ON APPEAL
In Complainant's February 14, 2013, interlocutory appeal statement, she specifically asserts that the AJ's decision to sanction her after reading her exhibits was improper. Complainant asserts that AJ-2 accepted the Agency Counsel's excuses, such as the birth of a grandchild, but denied her reasons for noncompliance. In response, the Agency argues that it articulated a legitimate, nondiscriminatory reason for delaying Complainant's interview with respect to claim 8. The Agency argues that Complainant did not establish that a discriminatory motive played a part in delaying her interview. The Agency notes that Complainant did not raise any argument in support of her appeal and has not filed a brief on appeal with regard to its finding of no discrimination with respect to claim 8.
ANALYSIS AND FINDINGS
AJ's Decision to Sanction Complainant
Initially we note that Complainant, on appeal, has challenged only AJ-2's decision to sanction her with regard to claim 8. Complainant has not addressed AJ-2's finding of no discrimination with regard to claims 1-7, or the Agency's final decision implementing AJ-2's issuance of summary judgment in its favor.2 Therefore, we will not address AJ-2's finding of no discrimination with regard to claims 1-7. The Commission exercises its discretion to review only those issues specifically raised on appeal. EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � IV.A. (Aug. 5, 2015) ("Although the Commission has the right to review all of the issues in a complaint on appeal, it also has the discretion to focus only on those issues specifically raised on appeal.").
With respect to AJ-2's decision to sanction Complainant, we note that the Commission's regulations afford broad authority to AJs for the conduct of hearings. 29 C.F.R. � 1614.109 et seq.; EEO MD-110, Chap, 7, � III.D. An AJ has inherent powers to conduct a hearing and issue appropriate sanctions, including a default judgment. Id.; see Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005); Rountree v. Dep't of the Treas., EEOC Appeal No. 07A00015 (July 17, 2001).
More specifically, our regulations provide that where a party, inter alia, fails to respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. � 1614.109(f)(3). An AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the non-complying party; (2) consider the requested information to be established in favor of the opposing party; (3) exclude other evidence offered by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party; or (5) take other action deemed appropriate, e.g., payment of costs and expenses by the non-complying party. Id. An AJ must first issue a Notice to Show Cause to the non-complying party. EEO MD-110, Chap. 7, � III.D, n. 6; see DaCosta v. Dep't of Education, EEOC Appeal No. 01995992 (Feb. 25, 2000).
In general, the Commission has held that sanctions, while corrective, also act to prevent similar misconduct in the future and must be tailored to each situation, applying the least severe sanction necessary to respond to the party's failure to show good cause for its actions, as well as to equitably remedy the opposing party. See Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007); Rountree, EEOC Appeal No. 07A00015; Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000).
We note, as explained above, that an AJ has the authority to impose sanctions on a party if he or she fails to comply without good cause with orders or requests. In this case, the AJ sanctioned Complainant by dismissing her hearing request (as to claim 8) pursuant to AJ-2's determination that Complainant failed to show good cause for missing the pre-hearing conference, or to show good cause for not timely meeting the deadline for filing the pre-hearing submissions.
We note that Complainant does not dispute that on October 2, 2012, she was notified of the pre-hearing conference scheduled for December 14, 2012. Complainant did not attend and did not provide notice to the parties that she would not do so. Even though Complainant responded to the AJ's notice to show good cause by explaining that she briefly did not have access to her work e-mail, she does not dispute that she had notice of the conference more than two months in advance. AJ-2 then held the pre-hearing conference on December 18, 2012. During the pre-hearing conference, the AJ set the deadline for pre-hearing submissions to be submitted no later than December 28, 2012. Complainant failed to meet the deadline and also did not request an extension before the deadline. The AJ found that Complainant's explanations in response to her show cause orders were not adequate to excuse her noncompliance. We note that the Commission's regulations give AJs the authority to impose sanctions if a party fails to provide an adequate explanation for not complying in a timely manner with his/her orders. See EEO MD-110, Ch. 7, � III.D (Aug. 5, 2015). The facts herein, coupled with the broad authority the Commission grants to its AJs as to how hearings are conducted, support a finding that the AJ did not abuse her discretion when she dismissed Complainant's hearing request.
Disparate Treatment (Claim 8)
To prevail in a disparate treatment claim, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804 n. 14. The burden then shifts to the Agency to articulate a legitimate, non-discriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993).
Upon review, we find that assuming, arguendo, that Complainant established a prima facie case of discrimination based on sex, age, and reprisal, the Agency articulated legitimate, non-discriminatory reasons for its actions with regard to claim 8. As noted above, management explained that all interviews initially scheduled for the position were canceled because they mistakenly failed to follow the "Rule of Three" interview policy. The burden now shifts to Complainant to establish that the Agency's nondiscriminatory reasons were pretext for discrimination. Burdine, at 254. In an attempt to show pretext, Complainant asserts the Agency falsely averred that her name was not listed on the Certificate Eligibles for the position at issue. Notwithstanding Complainant's assertion, the record contains the Certificate of Eligibles for No. 223864, and a review of that document shows that Complainant's name is not listed. Supplemental Report of Investigation, Ex. A9, at 3-4. Further, all three selectees for the position were listed at or near the top of the Certificate. Id. As such, the record supports the Agency's reason that its "Rule of Three" policy was followed. We can find no evidence that management here was motivated by discriminatory or retaliatory animus, and find that Complainant has not established that the Agency's reasons were pretext for discrimination with regard to claim 8.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ did not abuse her discretion when she dismissed Complainant's hearing request as a sanction; and that Complainant did not establish that the Agency's proffered explanation for delaying her interview with respect to No. DM-09MCS-223864 was pretext for discrimination. Accordingly, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (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
January 8, 2016
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 As noted above, Complainant filed her appeal contesting the AJ's sanction before the Agency issued its final decision. The Commission determines that Complainant's February 14, 2013, appeal was interlocutory and generally would not be considered. However, given the fact that the Agency has since rendered a final decision on April 3, 2013, and that Complainant filed an appeal from that decision, we determine that the arguments raised in the February 14, 2013, interlocutory appeal are now ripe for consideration. See Bell v. U.S. Postal Serv., EEOC Appeal No. 0120121504 (June 13, 2012).
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