0120140377
06-15-2016
Frederick A.,1 Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Frederick A.,1
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120140377
Hearing No. 410-2013-00056X
Agency No. 11-67004-00985
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final order dated November 22, 2013, dismissing his complaint of unlawful 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. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, we REVERSE the Agency's final order and REMAND the complaint for further processing.
ISSUE PRESENTED
The issue presented is whether the Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ) abused his discretion when he dismissed Complainant's complaint as a sanction pursuant to 29 C.F.R. � 1614.109(f)(3).
BACKGROUND
On July 6, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against him on the basis of race (African-American) when it did not select him for the following positions: (1) Sandblaster, WG-5423-07, under Requisition Number SE04-5423-07-MR219997; (2) Motor Vehicle Operator, WG-5703-07, under Requisition Number SE04-5703-07-MR223290; (3) Sandblaster Leader, WG-5423-07, under Requisition Number SE04-5423-07-MR233631; and (4) Motor Vehicle Dispatcher, GS-2151-05, under Requisition Number SE7-2151-05-MR540660-I.
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. On September 30, 2013, the AJ dismissed Complainant's complaint as a sanction pursuant to 29 C.F.R. � 1614.109(f)(3). Specifically, the AJ found that Complainant failed to respond to the AJ's order or otherwise prosecute his case. In so finding, the AJ noted that Complainant failed to provide complete discovery responses, to respond to the Agency's motions to compel, to respond to the AJ's order to compel, and to respond to the Agency's motion for dismissal. The Agency subsequently issued a final order fully implementing the AJ's decision to dismiss Complainant's complaint.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that he answered all the questions put before him to the best of his knowledge and in a timely manner. In opposition to Complainant's appeal, the Agency argues that Complainant's uncooperative behavior rose to the level of contumacious conduct and warranted the dismissal of his complaint. Specifically, the Agency asserts that the facts in Complainant's case are "strikingly similar" to those in Catella v. Gen. Servs. Admin., EEOC Appeal No. 01A05649 (Apr. 18, 2001), request for reconsideration denied, EEOC Request No. 05A10696 (Sept. 20, 2001), where we affirmed the AJ's dismissal of the complainant's complaint.
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 7-10 (Aug. 5, 2015) (citing 29 C.F.R. � 1614.109(f)(3)). 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, Complainant failed to provide complete discovery responses, to respond to the Agency's motions to compel, to respond to the AJ's order to compel, and to respond to the Agency's motion for dismissal. While we agree that Complainant's conduct warrants a sanction, we find that the AJ abused his discretion when he dismissed Complainant's complaint.
Complainant's behavior did not rise to the level of contumacious conduct. Specifically, we find that the facts in Complainant's case are not "strikingly similar" to those in Catella. In Catella, the complainant failed to respond to any communications and orders from both the AJ and the agency. Here, Complainant responded (albeit incompletely) to the Agency's discovery requests on April 29, 2013 and May 2, 2013. Moreover, we find that the facts in Complainant's case are more similar to those in Black v. Dep't of the Treasury, EEOC Appeal No. 0120073275 (Feb. 11, 2011), request for reconsideration denied, EEOC Request No. 0520110370 (May 20, 2011). In Black, we reversed the AJ's dismissal of the complainant's complaint because the complainant's behavior (failure to respond to the agency's discovery requests, to respond to the AJ's order to respond to the agency's discovery requests, and to respond to the AJ's show cause order) did not rise to the level of contumacious conduct.
It is well-settled that when we find that a complainant has not cooperated in the hearings process, absent a finding of contumacious conduct, the appropriate sanction is to dismiss the hearing request, and remand the complaint to the agency to issue a final agency decision on the record. See Byers v. Dep't of Homeland Sec., EEOC Appeal No. 0120082542 (Nov. 7, 2008); Bates v. Dep't of Veterans Affairs, EEOC Appeal No. 0120063654 (Nov. 30, 2007); Cole v. Dep't of the Navy, EEOC Appeal No. 01A42577 (Feb. 16, 2005). Given that the Agency conducted a full investigation of the complaint, we find that the appropriate sanction here is to return the complaint to the Agency to issue a final decision on the merits based on the existing record. We find that the record as it was developed in the investigative process is sufficient upon which to base a decision. Therefore, we shall remand the matter so that the Agency may issue a decision in accordance with 29 C.F.R. � 1614.110.
CONCLUSION
The AJ abused his discretion when he dismissed Complainant's complaint because Complainant's behavior does not rise to the level of contumacious conduct. Therefore, based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order and REMAND the complaint for further processing in accordance with this decision and the Order below.
ORDER
Within sixty (60) calendar days from the date this decision becomes final, the Agency shall issue a final decision on the complaint in accordance with 29 C.F.R. � 1614.110. A copy of the Agency's final decision must be sent to the Compliance Officer referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (M0416)
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. The requests 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 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
_6/15/16_________________
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.
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