0120150266
10-19-2016
Karolyn E.,1 Complainant, v. Ashton B. Carter, Secretary, Department of Defense (Defense Logistics Agency), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Karolyn E.,1
Complainant,
v.
Ashton B. Carter,
Secretary,
Department of Defense
(Defense Logistics Agency),
Agency.
Appeal No. 0120150266
Hearing No. 410-2013-00296X
Agency No. DLAR-12-0271
DECISION
On October 28, 2014, Complainant filed an appeal from the Agency's September 24, 2014, 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the appeal pursuant to 29 C.F.R. � 1614.405(a). Upon review, the Commission VACATES and REMANDS the Agency's final decision.
ISSUE PRESENTED
The issue presented is whether the Agency should have dismissed Complainant's EEO complaint for failure to comply with an order of an Equal Employment Opportunity Administrative Judge (AJ), or whether it should have issued a decision on the merits.
BACKGROUND
During the period at issue, Complainant worked as a Supply Technician, GS-2005-06 at the Agency's aviation facility in Robins Air Force Base, Georgia. On September 25, 2012, she filed an EEO complaint in which she alleged discrimination on the bases of race (African-American), color (black), sex (female), religion (African Methodist), disability (cancer, anemia, chronic iron deficiency, hypoglycemia), age (50), and reprisal (prior EEO activity) when:
1. On August 28, 2012, she was informed that her request for advanced leave was not sufficient;
2. On August 31, 2012, she was placed on leave restriction;
3. From August 3, 2012 through October 31, 2012, her requests for advanced leave were denied;
4. She was placed on leave without pay for the pay periods spanning August 2012 through October 2012;
5. From August 2012 through October 2012, she was not properly trained; and
6. On August 28, 2012, she was told she could not telework because she was in a training position.
The Agency accepted the complaint for investigation, and at the conclusion thereof, provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an AJ. Complainant requested a hearing but the AJ ultimately denied the request as a sanction on the grounds that Complainant failed to fully and completely respond to the AJ's Order to Compel Discovery. The AJ remanded the complaint to the Agency for disposition, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). In the decision, the Agency dismissed Complainant's EEO complaint because she failed to follow an AJ order. Essentially, the Agency concluded that because the underlying EEO matter was dismissed by the AJ as a sanction, Complainant was not a prevailing party. Complainant thereafter filed this appeal.
CONTENTIONS ON APPEAL
Complainant did not submit contentions on appeal. On appeal, the Agency requests that we affirm its dismissal of Complainant's complaint.
STANDARD OF REVIEW
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 Chapter 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 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").
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(7) provides for the dismissal of a complaint where the Agency has provided the Complainant with a written request to provide relevant information or otherwise proceed with the complaint, and Complainant has failed to respond to the request within fifteen days of its receipt, or the Complainant's response does not address the Agency's request, provided that the request included a notice of the proposed dismissal. The regulation further provides that, instead of dismissing for failure to cooperate, the complaint may be adjudicated if sufficient information for that purpose is available.
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
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Agency should not have dismissed Complainant's EEO case but instead should have issued a decision on the merits. Accordingly, the Agency's final action is VACATED and REMANDED to take action in accordance with this decision and the order below.
ORDER
Within sixty (60) calendar days of the date this decision is issued, 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
_10/19/16_________________
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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