Helen Rhinesmith, Complainant,v.Paul H. O'Neill, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.

Equal Employment Opportunity CommissionJan 28, 2003
07A10103 (E.E.O.C. Jan. 28, 2003)

07A10103

01-28-2003

Helen Rhinesmith, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.


Helen Rhinesmith v. Department of the Treasury

07A10103

January 28, 2003

.

Helen Rhinesmith,

Complainant,

v.

Paul H. O'Neill,

Secretary,

Department of the Treasury,

(Internal Revenue Service),

Agency.

Appeal No. 07A10103

Agency No. 00-1006

Hearing No. 110-A1-8161X

DECISION

The agency initiated an appeal in conjunction with its final order

concerning complainant's equal employment opportunity (EEO) complaint

of unlawful employment discrimination in violation of Section 501 of the

Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �

791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.

Complainant, a Tax Examiner employed at the agency's Atlanta Service

Center in Chamblee, Georgia filed a formal EEO complaint alleging that

in August 1999, her promotion to a GS-07 Customer Service Representative

position was rescinded, and she was denied admittance into Customer

Service Representative Training. When the agency failed to complete

the investigation within 180 days, complainant requested a hearing

before an EEOC Administrative Judge. See 29 C.F.R. � 1614.106(e)(2).

On January 18, 2001, complainant's request for a hearing was received

by the Hearings Unit of the Atlanta District Office. On January 31,

2001, the agency was ordered to produce the complaint file or explain

why it could not do so. Although the agency made some effort to contact

the Hearings Unit, it failed to follow through on its effort. On March

12, 2001, an Administrative Judge issued an Order to Show Cause within

fifteen days why the agency should not be sanctioned for failing to

produce the complaint file. The Order specifically stated that sanctions

could include the issuance of a decision in complainant's favor.

On April 17, 2001, having received no complaint file and no communication

from the agency, an Administrative Judge issued a decision in

complainant's favor. The Administrative Judge stated:

The agency's failure to respond is not simple negligence: It is contumacy,

that is disobedience. This dictates the imposition of the severest

of sanctions.

Decision on Liability (April 17, 2001). The Administrative Judge

scheduled a hearing for May 21, 2001 to determine to what relief

complainant was entitled. On July 13, 2001, the Administrative Judge

issued a Decision finding that complainant failed to prove she was

entitled to compensatory damages and ordering the agency to reinstate

complainant to the GS-7 position from which she was de-selected, to

assign her to either the 7:00 a.m. - 3:30 p.m. or 7:30 a.m. - 4:00

p.m. shift, and to pay appropriate back pay. On September 11, 2001,

the Administrative Judge issued a Decision awarding complainant $3,573.00

for attorney's fees and $300.00 for costs.<1>

On appeal, the agency states that it submitted the complaint file to the

Administrative Judge and complainant on April 19, 2001. The following

day it submitted a Motion to Vacate Decision which included a letter

of explanation for its failure to act.<2> The agency argues that

the Administrative Judge abused his discretion in denying the Motion

because the facts do not establish that the agency's conduct amounted

to contumacy and thus did not warrant the imposition of the severest

of sanctions. In support of this argument, the agency states that it

was not willfully disobeying the Administrative Judge's directives, only

that it was untimely in responding to them. The agency admits that its

actions constituted negligence and submits that a less severe sanction

would have been appropriate.

The Administrative Judge's authority to issue sanctions is set forth at

29 C.F.R. � 1614.109(f)(3).

When the complainant, or the agency against which a complaint is filed,

or its employees fail without good cause shown to respond fully and in

timely fashion to an order of an Administrative Judge, or requests for the

investigative file, for documents, records, comparative data, statistics,

affidavits, or the attendance of witness(es), the Administrative Judge

shall, in appropriate circumstances:

i. Draw an adverse inference that the requested information, or the

testimony of the requested witness, would have reflected unfavorably on

the party refusing to provide the requested information;

ii. Consider the matters to which the requested information or testimony

pertains to be established in favor of the opposing party;

iii. Exclude other evidence offered by the party failing to produce the

requested information or witness;

iv. Issue a decision fully or partially in favor of the opposing party; or

v. Take such other actions as appropriate.

29 C.F.R. � 1614.109(f)(3). Additional guidance can be found in the

Commission's Management Directive, EEO MD-110, November 1999, 7-9 and

Rules 11 and 37 of the Federal Rules of Civil Procedure. Sanctions should

be tailored to deter the party from similar conduct in the future and,

if warranted, to equitably remedy any harm incurred by the opposing

party. Sanctions should not be so severe that they result in inequity,

nor should they be so lenient that they fail to serve as a deterrent.

If a lesser sanction would suffice to deter the conduct and to equitably

remedy the opposing party, it may constitute an abuse of discretion

to impose a harsher sanction. See Hale v. Department of Justice, EEOC

Appeal No. 01A03341 (December 8, 2000).

We agree with the agency that its failure to respond to the

Administrative Judge's directives did not amount to contumacious

conduct. The Commission has generally not regarded a party's failure to

respond to an Administrative Judge's order as constituting contumacy.

The Commission found that contumacious conduct occurred in Bennett

v. Department of the Navy, EEOC Request No. 05980746 (September 19, 2000)

when complainant cursed the Administrative Judge, impugned his character,

showed disrespect for the agency's attorneys, and made personal and

unprovoked attacks on participants in the hearing. We thus conclude

that the Administrative Judge's characterization of the agency's conduct

as constituting contumacy was in error, but we are not persuaded by

the agency that the issuance of a decision in complainant's favor was

inappropriate under the circumstances of the instant case.

The agency argues that the sanction contemplated was too harsh because

the failure to timely produce the complaint file was neither willful

nor deliberate. The agency also argues that a lesser sanction would

have sufficed to deter its conduct and equitably remedy complainant.

We acknowledge that these arguments have merit. However, we also find

that in order for the Commission to find that the Administrative Judge

abused his discretion in sanctioning the agency as he did, the agency

should have raised these arguments before the Administrative Judge issued

his decision, rather than after the issuance of the decision. At the time

the Administrative Judge issued his decision, no agency representative

had offered any explanation for the agency's failure to comply with the

orders issued from the Hearings Unit, despite notice that the agency's

failure to do so could result in a default judgment for complainant.

In Janda v. United States Postal Service, EEOC Appeal No. 07A10018 (March

4, 2002), the Commission affirmed an Administrative Judge's issuance

of a default judgment in favor of complainant when the agency failed to

respond to complainant's discovery requests and to complainant's motions

for sanctions. In Janda, the Administrative Judge found that the agency

never proffered an explanation for its inaction but conceded that its

representative displayed a �non-cooperative attitude.� Upon review

of the record before us, we find that the agency failed to proffer an

explanation for its inaction and did not concede its negligence until

after the April 17, 2001 Decision on Liability was issued. Accordingly,

based on the information the Administrative Judge had when he issued his

decision, we find that he did not abuse his discretion in sanctioning

the agency by entering a decision fully in complainant's favor. See 29

C.F.R. � 1614.109(f)(3)(v).

Therefore, after a careful review of the record, including arguments and

evidence not specifically discussed in this decision, the Commission

reverses the agency's final order and directs the agency to take

corrective action in accordance with this decision and the Order below.

ORDER

1. Within sixty (60) days of this decision becoming final, the agency

shall offer complainant the position of Customer Service Representative

or a substantially equivalent position at the Atlanta Service Center

in Chamblee, Georgia with either of the following shifts: 7:00 a.m. -

3:30 p.m. or 7:30 a.m. - 4:00 p.m. Complainant shall be given a minimum

of fifteen days from receipt of the offer of placement within which

to accept or decline the offer. Failure to accept the offer within

the time period set by the agency will be considered a rejection of the

offer, unless complainant can show that circumstances beyond her control

prevented a response within the time limit.

2. Within sixty (60) days of this decision becoming final, the agency

shall award complainant back pay with interest and other benefits

due complainant, for the period from September 1, 1999 to the date she

assumes or declines to assume the position referenced above. The agency

shall determine the appropriate amount of back pay with interest and

other benefits due complainant, pursuant to 29 C.F.R. � 1614.501, no

later than sixty (60) days after the date this decision becomes final.

The complainant shall cooperate in the agency's efforts to compute

the amount of back pay and benefits due, and shall provide relevant

information requested by the agency. If there is a dispute regarding the

exact amount of back pay and/or benefits, the agency shall issue a check

to the complainant for the undisputed amount within sixty (60) calendar

days of the date the agency determines the amount it believes to be due.

The complainant may petition for enforcement or clarification of the

amount in dispute. The petition for clarification or enforcement must

be filed with the Compliance Officer, at the address referenced in the

statement entitled �Implementation of the Commission's Decision.�

3. Within sixty (60) days of this decision becoming final, the agency

shall pay complainant $3,573.00 in attorney's fees and $300.00 in costs.

POSTING ORDER (G0900)

The agency is ordered to post at its Chamblee, Georgia facility copies

of the attached notice. Copies of the notice, after being signed by the

agency's duly authorized representative, shall be posted by the agency

within thirty (30) calendar days of the date this decision becomes final,

and shall remain posted for sixty (60) consecutive days, in conspicuous

places, including all places where notices to employees are customarily

posted. The agency shall take reasonable steps to ensure that said

notices are not altered, defaced, or covered by any other material.

The original signed notice is to be submitted to the Compliance Officer

at the address cited in the paragraph entitled "Implementation of the

Commission's Decision," within ten (10) calendar days of the expiration

of the posting period.

ATTORNEY'S FEES (H0900)

If complainant has been represented by an attorney (as defined by

29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of

reasonable attorney's fees incurred in the processing of the complaint.

29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid

by the agency. The attorney shall submit a verified statement of fees

to the agency -- not to the Equal Employment Opportunity Commission,

Office of Federal Operations -- within thirty (30) calendar days of this

decision becoming final. The agency shall then process the claim for

attorney's fees in accordance with 29 C.F.R. � 1614.501.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 19848,

Washington, D.C. 20036. 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 (M0701)

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), 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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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 that the Court appoint

an attorney to represent you and that the Court 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 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

January 28, 2003

__________________

Date

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

An Agency of the United States Government

This Notice is posted pursuant to an order by the United States Equal

Employment Opportunity Commission dated ___________ which found that a

violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq. has occurred at the agency's

facility in Chamblee, Georgia (hereinafter this facility).

Federal law requires that there be no discrimination against any employee

or applicant for employment because of the person's RACE, COLOR, RELIGION,

SEX, NATIONAL ORIGIN, AGE, or DISABILITY with respect to hiring, firing,

promotion, compensation, or other terms, conditions or privileges of

employment.

This facility was found to have discriminated against an employee when

an EEOC Administrative Judge sanctioned the Department of Treasury for

failing to respond to the Commission's directives. The facility was

ordered to award the employee a position with appropriate back pay and

to pay proven attorney's fees and costs. This facility will ensure that

officials responsible for personnel decisions and terms and conditions

of employment will abide by the requirements of all federal equal

employment opportunity laws and will not retaliate against employees

who file EEO complaints.

This facility will comply with federal law and will not in any manner

restrain, interfere, coerce, or retaliate against any individual who

exercises his or her right to oppose practices made unlawful by, or

who participates in proceedings pursuant to, federal equal employment

opportunity law.

Date Posted: _____________________

Posting Expires: _________________

29 C.F.R. Part 1614

1 The agency, although rejecting the relief awarded by the Administrative

Judge, did not, on appeal, argue that it was improper or excessive.

2 The agency contended that: (1) although complainant's representative

argued to the contrary, it was holding the instant complaint in abeyance

based on its belief that the issue it raised was identical to an issue

raised in a class complaint that was pending certification; and (2)

because it only had original files, the files had to be sent to the

printing contractor for copying, and there was an administrative failure

in following through with having the copies mailed.