07A10018
03-04-2002
Kristine Janda, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Kristine Janda v. United States Postal Service
07A10018
March 4, 2002
.
Kristine Janda,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 07A10018
Agency No. 4E-800-1189-96
Hearing No. 320-97-8443X
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.<1> The appeal is accepted pursuant to 29
C.F.R. � 1614.405. Complainant alleges she was discriminated against
based on reprisal (prior EEO activity under the Rehabilitation Act) and
disability (rheumatoid arthritis) when she was: (1) subjected to hostile
work environment harassment; and (2) constructively discharged. For the
following reasons, the Commission REVERSES the agency's final order.
The record reveals that during the relevant time, complainant held various
positions at the agency's Parker, Colorado facility, the last of which was
window clerk. Complainant filed a formal EEO complaint with the agency
on July 9, 1996, alleging that the agency had discriminated against
her as referenced above.<2> At the conclusion of the investigation,
complainant was provided a copy of the investigative report and in July,
1997 requested a hearing before an EEOC Administrative Judge.
The EEOC District Office issued its order acknowledging and docketing
complainant's hearing request on August 6, 1997. That order provided
that the parties were to complete discovery within sixty (60) days of
the date of the order. On January 20, 1998, complainant, by counsel,
filed a motion to compel the agency to respond to outstanding discovery,
noting that the agency had ignored complainant's counsel's request
for a discovery agreement, the written discovery requests propounded,
and numerous telephone calls and letters from complainant's counsel
regarding the status of these matters. Although initially denied due
to a procedural defect which was subsequently cured, complainant's
motion to compel was subsequently granted on March 2, 1998 by an EEOC
Supervisory Administrative Judge. The March 2, 1998 order directed the
agency to "serve its answers upon and provide the requested documents
and materials to complainant's representative ... not later than close
of business March 20, 1998."
The agency never served any response to the referenced discovery requests.
By letter to the agency dated March 24, 1998, complainant's counsel
advised the agency that if it continued to ignore the the Administrative
Judge's order, complainant would seek sanctions. Still no response
was received, and complainant discharged her counsel. By order issued
February 9, 2000, the parties were advised that a hearing was scheduled
for April 11, 2000, and, inter alia, that the Commission's revised
regulations which became effective November 9, 1999, allowed parties
to conduct discovery not previously permitted at the hearing stage of
the administrative process, and that unless otherwise authorized by
the Administrative Judge, "all discovery shall be completed not later
than 7 days prior to the date the hearing is scheduled to commence."
In addition, the order listed seven (7) hearing witnesses approved to
testify for complainant, and noted that the agency had failed to identify
any witnesses to testify in the matter.
By new counsel, complainant filed a motion for sanctions on March 15,
2000, based on the agency's failure to cooperate, including its continued
failure to provide the discovery responses ordered by the Supervisory
Administrative Judge's March 2, 1998 order. On April 3, 2000, the
Administrative Judge assigned to hold the hearing issued an order
noting that the agency had failed to respond to complainant's motion for
sanctions, and directing the agency to show cause by April 10, 2000 why
a decision should not be rendered in complainant's favor pursuant to 29
C.F.R. � 1614.109(f). Still, the agency failed to respond. Accordingly,
by order issued April 12, 2000, the Administrative Judge issued a default
judgment in favor of the complainant pursuant to � 1614.109(f)(3), and
scheduled a hearing on remedies. Following the hearing on remedies, the
Administrative Judge issued a decision awarding the following relief:
(1) the agency shall cease and desist from engaging in any further
discrimination; (2) the agency shall pay complainant's reasonable
attorney's fees and costs in the amount of $35,899.06; (3) the agency
shall take appropriate actions to alleviate any lingering effects of the
discriminatory actions, and shall provide EEO and disability sensitivity
training to the involved managers; (4) the agency shall pay complainant
$100,000 in compensatory damages for mental and emotional harm caused by
the agency's discrimination; (5) the agency shall pay complainant back
pay, with interest, including benefits lost, and all future pecuniary
losses incurred, including lost wages until complainant reaches age 55,
subject to the $300,000 statutory cap on complainant's total recovery
of compensatory damages; and (6) the posting of a notice.
On July 25, 2000, the agency issued a final order stating that it would
not implement the Administrative Judge's decision, that it "hereby
files an appeal," and that it would defer payment of any sums ordered
by the Administrative Judge. On appeal, the agency contends that
the Administrative Judge had no grounds to grant a default judgment.
In neither its final order nor its two briefs on appeal does the agency
contest the propriety of the remedies granted by the Administrative Judge,
assuming default judgment is upheld, but rather simply contends the
default judgment was an excessive sanction. In response, complainant
contends that the agency's appeal should be dismissed on any of the
following grounds: (1) the final order was untimely issued, disputing the
date on which the agency contends it received the Administrative Judge's
decision; (2) because the "notice of final action" issued by the agency
contained references in the text to the agency appealing, and included
the EEOC on its certificate of service, but the agency did not separately
issue a document entitled "Appeal"; and (3) because it allegedly failed
to comply with the requirements for interim relief. Complainant further
contends that if the appeal is accepted, the Administrative Judge's
issuance of default judgment and the remedies ordered should be upheld.
As a threshold matter, we decline to dismiss the agency's appeal
on any of the grounds sought by complainant. First, in light of the
disputed evidence regarding the timeliness of the agency's final order,
including the date stamp on the agency's file copy of the Administrative
Judge's decision which supports the agency's contention as to when it was
received, we decline to dismiss the agency's appeal as untimely filed in
this case. Second, we reject complainant's argument that the caption
of complainant's final order had to contain the word �appeal� in order
to comply with our regulations, particularly where the document states
that the agency "hereby files an appeal." Third, we find that the interim
relief provisions of 29 C.F.R. � 1614.505 do not apply in this case, since
the Administrative Judge's decision did not order retroactive restoration.
See 29 C.F.R. � 1614.505(a)(1).
Pursuant to 29 C.F.R. � 1614.109(f)(3), when a party fails without good
cause shown to respond fully and in timely fashion to an order of an
Administrative Judge, appropriate sanctions may be imposed, including
specifically issuance of a decision fully or partially in favor of the
opposing party. In circumstances similar to the instant case, we have
previously upheld the issuance of a default judgment in one party's
favor as a sanction for the opposing party's failure to comply with
orders issued by an Administrative Judge. See Magruder v. United States
Postal Service, EEOC Appeal No. 01984820 (March 17, 1999) (upholding
Administrative Judge's issuance of decision in complainant's favor as
a sanction for agency representative's failure to appear timely at the
hearing), request for reconsideration denied, EEOC Request No. 05990640
(March 9, 2001); Pacheco v. United States Postal Service, EEOC Appeal
No. 01970691 (November 25, 1998) (upholding Administrative Judge's
issuance of decision in complainant's favor as a sanction against the
agency, where Administrative Judge found that agency "acted deliberately
in refusing to provide complainant with relevant evidence in order
to prove her claims, in failing to state pertinent objections, in not
filing timely motions, and, most importantly, in refusing to comply with"
discovery orders); Telles v. United States Postal Service, EEOC Appeal
No. 01980931 (November 25, 1998) (upholding Administrative Judge's
issuance of decision in complainant's favor as a sanction for agency's
refusal to reserve a room for the hearing and failure to appear without
good cause); see also Viramontes v. United States Postal Service, EEOC
Appeal No. 01980929 (October 30, 1998).
Applying these authorities, we find that the Administrative Judge properly
granted default judgment in complainant's favor. In reaching this
conclusion, we note that beyond its failure to respond to complainant's
discovery requests in accordance with an Administrative Judge's order
compelling responses, and beyond its further failure to respond to either
complainant's motion for sanctions or the Administrative Judge's order
to show cause, the agency has never proffered an explanation for its
inaction, either in its final order or in the two separate briefs it has
filed on appeal. Rather, the agency concedes that its representative
displayed a "non-cooperative attitude" in this case, and states that
it does not condone such conduct. The agency is responsible for its
representative's defaults, and cannot avoid this responsibility by
asserting, as it does, that the Administrative Judge or complainant
otherwise failed to properly process the complaint. The agency's various
arguments raised for the first time on appeal regarding what it contends
were legal errors in the 1998 granting of complainant's motion to compel
discovery could have been raised either in opposition to the motion to
compel discovery, in a motion for reconsideration with the Administrative
Judge at the time the motion was granted, in opposition to complainant's
motion for sanctions, or in response to the order to show cause, but
the agency failed to utilize any of these opportunities.
Moreover, the agency's contentions regarding the alleged impropriety of
the default judgment as a sanction are without merit. In particular, the
agency's contention that the February 9, 2000 scheduling order stating
that all discovery must be concluded seven days before the hearing
commences superseded the 1998 order compelling production of discovery
responses, and established "a new discovery period," agency brief at
3, is contrary to both law and logic. The only possible reading of
the discovery cut-off referenced in the February 9, 2000 order is that
any discovery yet to be initiated or completed must be completed by the
cut-off. By no possible reading could this "undo" the previously-entered
order compelling the agency's discovery responses already long overdue.
Moreover, if any confusion was in fact created by the reference to a
discovery cut-off in the February 9, 2000 order, the agency should and
presumably would have asserted this by filing a response to the motion
for sanctions or the order to show cause, but instead it failed to reply
altogether, and even on appeal offers no explanation for its failure to
do so.
With respect to remedies, as noted above, the agency has not addressed
any of the remedies ordered by the Administrative Judge anywhere in its
appellate submissions, and thus we conclude that assuming the default
judgment is found to have been proper, the agency does not otherwise
contest the remedies ordered by the Administrative Judge. We note that
the Administrative Judge specifically found, based on medical evidence,
that complainant was unable to return to her employment from February
26, 1996, onward, due to aggravation and acceleration of her rheumatoid
disease process proximately caused by the agency's discriminatory
actions. On this basis, the Administrative Judge awarded complainant
back pay from February 26, 1996 through the date the decision becomes
final, and pecuniary damages for future lost wages thereafter until
complainant reaches age 55. In affirming this relief, we note that
the agency neither introduced any contrary evidence at the hearing on
remedies, nor contested this finding on appeal. We further note that the
Administrative Judge's award of $100,000 in non-pecuniary compensatory
damages is supported by the record and consistent with awards in similar
cases. Cf. Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001)
(upholding $200,000 compensatory damages award to ADA plaintiff who
experienced emotional distress caused by hostile work environment
disability-based harassment); Hogan v. Bangor & Aroostook R.R. Co.,
61 F.3d 1034, 1037-38 (1st Cir. 1995) (upholding $200,000 compensatory
damages award to ADA plaintiff who"became depressed, withdrawn, and
gave up his usual activities" due to employer's refusal to allow him
to return to work after work-related injury); Durrant v. Department
of Veterans Affairs, EEOC Appeal No. 01971885 (September 15, 2000)
($70,000 award for aggravation of complainant's medical condition
and emotional distress caused by agency's disability discrimination);
Finlay v. United States Postal Service, EEOC Appeal No. 01942985 (April
29, 1997) ($100,000 award for emotional harm where appellant developed
severe psychological impairment that rendered her unable to work for
the foreseeable future as a result of harassment).
Accordingly, after a careful review of the record, including both
parties' arguments on appeal, and arguments and evidence not specifically
discussed in this decision, the Commission REVERSES the agency's final
order and ORDERS the agency to take remedial actions in accordance with
this decision and the following Order.
ORDER (D0900)
The agency is ordered to take the following remedial action:
1. The agency shall determine the appropriate amount of back pay (with
interest, if applicable), future pecuniary damages representing lost
wages, and other benefits due complainant, pursuant to 29 C.F.R. �
1614.501, no later than sixty (60) calendar days after the date this
decision becomes final. Back pay shall be calculated from February
26, 1996 until the date this decision becomes final. Future pecuniary
damages representing lost wages shall be calculated from the date this
decision becomes final until complainant reaches age fifty-five (55),
subject to the statutory cap on total recovery of compensatory damages.
The complainant shall cooperate in the agency's efforts to compute the
amounts due, and shall provide all relevant information requested by
the agency. If there is a dispute regarding the exact amount of back
pay, future pecuniary damages representing lost wages, 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."
2. Within sixty (60) calendar days after the date this decision becomes
final, the agency will remit to complainant $100,000 in non-pecuniary
compensatory damages.
3. Within sixty (60) calendar days after the date this decision becomes
final, the agency will remit to complainant $35,899.06 in attorney's
fees and costs. In addition, if complainant has additionally incurred
appellate fees and costs, she may apply for an additional award of fees
and costs in accordance with the paragraph below entitled "Attorney's
Fees."
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Parker, Colorado postal 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 (R0900)
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 (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
March 4, 2002
__________________
Date
1The Rehabilitation Act was amended in 1992 to apply the standards in
the Americans with Disabilities Act (ADA) to complaints of discrimination
by federal employees or applicants for employment.
2The agency's letter regarding the issues accepted for investigation
only identified complainant's harassment claim, since her alleged
constructive discharge had not yet occurred. However, complainant
responded to the acceptance letter by notifying the agency that the
harassment was continuing, and complainant's affidavit and the agency's
report of investigation noted that constructive discharge was alleged.
See Hearing Transcript (April 24, 2000) at 5-10; Record of Investigation
at 359 (investigator's report). The Administrative Judge expressly found
the constructive discharge included within complainant's complaint upon
which judgment was granted, see "Remedies Decision" at 6 (June 9, 2000),
and the agency has not objected on appeal to this framing of the claim
for relief.