Floyd C.,1 Complainant,v.Robert Wilkie, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Oct 24, 2018

0120161198 (E.E.O.C. Oct. 24, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Floyd C.,1
Complainant,

v.

Robert Wilkie,
Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.

Appeal No. 0120161198

Hearing No. 510-2015-00408X

Agency No. 200I-0546-2014101220

DECISION

Complainant timely filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s
January 7, 2016, final decision concerning his 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 Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the
Commission VACATES the Agency’s final decision and REMANDS the matter to the hearing
stage.

ISSUE PRESENTED

The issue presented is whether, under the specific circumstances of the case, the Equal
Employment Opportunity Commission Administrative Judge’s (AJ) dismissal of Complainant’s
hearing request was too harsh of a sanction for failing to participate in the initial conference.

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.
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BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Housekeeping Aide
at the Agency’s Miami, Florida Medical Center. On January 12, 2014, Complainant filed an EEO
complaint alleging that the Agency discriminated against him on the bases of race (Black),
disability (mental), and reprisal for prior protected EEO activity (the instant complaint) when:

1. On February 13, 2013, Complainant was referred but not selected for the position
of Peer Support Apprentice, vacancy number WC-13-SSN-786689AA;
2. On April 18, 2013, Complainant was referred but not selected for the position of
Peer Support Apprentice, vacancy number WC-13-AIC-844404;2
3. On December 23, 2013, Complainant was intimidated when Agency police came
to his work area and asked him if he filed a complaint against the selecting official
(SO) following a visit to the facility’s EEO Office;
4. On May 29, 2013, Complainant was not referred or selected for the position of Peer
Support Specialist, vacancy numbers WC-13-AIC-879502 and WC-13-AIC-
898905;
5. On April 3, 2014, Complainant was advised that his application for the position of
Peer Review Specialist, vacancy number WC-14-AIC-1070292, did not support the
level of specialized/specific experience required for the position;
6. On October 6, 2014, Complainant was referred but not selected for the position of
Peer Support Apprentice, vacancy number WC-14-AIC-1191358;
7. On October 6, 2014, Complainant was referred but not selected for the position of
Peer Support Specialist, vacancy number WC-14-AIC-1196963; and
8. On October 29, 2014, Complainant learned that SO accessed his confidential
medical information nine times between 2011 and June 2014.3

The Agency dismissed claim 4 pursuant to 29 C.F.R. § 1614.107(a)(2) because it raised a matter
that had not been brought to the attention of an EEO counselor and was not like or related to the
matters brought to the attention of an EEO counselor. The Agency dismissed claim 8 pursuant to
29 C.F.R. § 1614.107(a)(1) for failure to state a claim, interpreting Complainant’s allegation to
mean that he believed that the Agency had violated his rights under the Privacy Act.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the report
of investigation and notice of his right to request a hearing before an AJ. Complainant requested
a hearing, but the AJ dismissed Complainant’s hearing request on the grounds that Complainant
failed to show good cause for failing to participate in the initial conference.

2 The Agency deemed claims 1 and 2 timely because Complainant had no reason to suspect that
he was discriminated against until January 24, 2014.

3 We have reframed this claim to more accurately reflect Complainant’s allegation.
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The record reflects that Complainant moved out of state during the processing of his complaint.
The Agency initially mailed a copy of the Report of Investigation (ROI) to Complainant’s Florida
address, but it subsequently mailed a copy of the ROI to his new out-of-state address. The AJ sent
the Order Scheduling Initial Conference to Complainant’s Florida address. The Agency filed a
motion to reschedule the initial conference because the Agency representative was unavailable on
the original date. Prior to filing the motion, the Agency representative emailed Complainant to
coordinate three dates and times to suggest to the AJ. The AJ subsequently issued an order granting
the Agency’s motion for a continuance. The AJ’s clerk emailed the order with the new date and
time to the incorrect email address for Complainant. We note that record does not establish that
Complainant had agreed to electronic service.

Complainant did not participate in the rescheduled initial conference. The AJ issued an order to
show cause, in which the AJ averred that the Agency representative called Complainant’s cell
phone and work phone numbers, to no avail. Complainant, who had previously been pro se, hired
an attorney after receiving the order to show cause at Complainant’s correct email address. In
Complainant’s attorney’s response to the order to show cause, the attorney stated that Complainant
was confused about the hearing process and had engaged in, at most, simple negligence, and that
dismissing his hearing request would be too harsh of a sanction. Complainant’s attorney offered
to participate in an initial conference at the earliest possible date. The AJ determined that
Complainant’s response to the order to show cause did not sufficiently address why he did not
appear at the initial conference, noting that the initial order scheduling the initial conference
provided phone numbers and email addresses for the AJ and the Hearings Unit as well as explained
the potential sanctions that could result for failing to follow the initial order.

The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to
29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the
Agency subjected him to discrimination as alleged.

CONTENTIONS ON APPEAL

On appeal, Complainant contends that he missed the initial conference because he did not receive
proper notice to his new address, phone number, or email address. According to Complainant,
dismissal of his hearing request was too harsh of a sanction. In the alternative, Complainant argues
the merits of his case.

The Agency makes no contentions in response to Complainant’s appeal.

ANALYSIS AND FINDINGS

As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b),
the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a).
See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chap. 9,
§ VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the
Commission examine the record without regard to the factual and legal determinations of the
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previous decision maker,” and that EEOC “review the documents, statements, and testimony of
record, including any timely and relevant submissions of the parties, and . . . issue its decision
based on the Commission’s own assessment of the record and its interpretation of the law”).

In the instant case, the AJ dismissed Complainant’s hearing request as a sanction for failing to
show good cause for not participating in the initial conference. 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). The sanctions available to an AJ for failure to provide requested relevant
information include an adverse inference that the requested information would have reflected
unfavorably on the party refusing to provide the requested information, exclusion of other evidence
offered by the party refusing to provide the requested information, or issuance of a decision fully
or partially in favor of the opposing party. See Hale v. Dep’t of Justice, EEOC Appeal No.
01A03341 (Dec. 8, 2000). These 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 serve this purpose, an AJ may be abusing his or her
discretion to impose a harsher sanction. 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. See Thomas v. Dep’t of Transportation, EEOC Appeal No.
01870232 (Mar. 4, 1988).

We do not find that the AJ abused his discretion in this case. The record does not indicate that the
AJ was aware that Complainant did not receive the initial order or the order rescheduling the initial
conference, which were sent to Complainant’s Florida address and to the incorrect email address
for Complainant, respectively. However, we find that, under the specific circumstances of this
case, the dismissal of Complainant’s hearing request was too harsh a sanction. Because of the
defective service, Complainant did not receive the AJ’s initial order, and he was not on notice that
the consequences for failure to comply with the AJ’s order could result in sanctions. Further,
because Complainant did not receive the AJ’s order rescheduling the initial conference, he was not
able to participate in the conference. Although the record does not establish that Complainant
affirmatively contacted the Agency to update his address, the Agency learned that Complainant
had moved out of state, obtained Complainant’s new address, and sent the ROI to his new address.
The Agency would have been aware, based on information included in a certificate of service, that
the AJ was directing correspondence to an incorrect address, and should have notified the AJ and
the Hearings Unit that Complainant had a new address. In addition, while service may have been
attempted electronically, there is, as noted above, nothing in the record to establish that
Complainant had agreed to electronic service. Under these circumstances, Complainant’s hearing
request should not have been dismissed.

Because of our determination in this case, we find it unnecessary to address the Agency’s findings
on the merits.

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CONCLUSION

Based on a thorough review of the record and the contentions on appeal, including those not
specifically addressed herein, we VACATE the Agency’s final decision finding no discrimination
because dismissal of his hearing request was too harsh a sanction and REMAND the matter for a
decision on the merits of the complaint pursuant to this decision and the ORDER below.

ORDER

The Agency shall submit to the Hearings Unit of the appropriate EEOC field office a copy of this
decision and the request for a hearing within fifteen (15) calendar days of the date this decision is
issued. The Agency is further directed to submit a copy of the complaint file to the EEOC Hearings
Unit within fifteen (15) calendar days of the date this decision is issued. The Agency shall provide
written notification to the Compliance Officer at the address set forth below that the hearing
request and 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 (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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.

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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.

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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

October 24, 2018
Date