Louise S.,1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 11, 2019

2019002731 (E.E.O.C. Sep. 11, 2019)

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

Louise S.,1
Complainant,

v.

Andrew M. Saul,
Commissioner,
Social Security Administration,
Agency.

Appeal No. 2019002731

Agency Nos. DAL-16-0340-SSA; DAL-16-0544-SSA

EEOC Hearing Nos. 450-2017-00422X; 450-2018-00067X

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Administrative Judge’s decision dated December 13, 2018, dismissing
her request for a hearing and entering judgment on her 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Service
Representative at the Agency’s Dallas North District Field Office facility in Dallas, Texas.

On April 28, 2016, Complainant filed a formal complaint alleging that the Agency subjected her
to harassment and discrimination on the bases of race (African-American), color (Black),
disability, age (55), and reprisal for prior EEO activity, when, on or about December 23, 2015,
Complainant was locked out of her computer and her access was denied. In addition, on June 22,
2016, Complainant filed the second complaint, in which she alleged she was locked out of her
computer again on March 3, 2016.

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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On August 5, 2016, the Agency notified Complainant that it was consolidating the two
complaints referenced above. The matters were assigned to an EEO Investigator, who attempted,
unsuccessfully, to obtain Complainant’s testimony. Complainant expressed discomfort with the
EEO investigation process. Complainant was advised to complete and return the affidavit no
later than the close of business on June 24, 2016. Complainant emailed the investigator on June
21, 2016, to request additional time to obtain counsel. The investigator set a new deadline of
June 28, 2016, for receipt of her written affidavit. Although Complainant sent the investigator
multiple emails regarding her complaint, she failed to respond to the affidavit questions, either
telephonically or in writing.

On September 1, 2016, the investigator contacted Complainant regarding her second complaint.
He then made attempts on three different dates. Complainant requested that the interview be
rescheduled. She told the investigator that she had filed her case in a United States District
Court. She refused to provide the investigator with any documentation concerning the complaint
she had allegedly filed in District Court.

The Agency issued the report of investigation with management’s responses to the complaint and
relevant documentary evidence. Complainant requested a hearing.

On November 28, 2017, the Chief AJ issued an Order to Show Cause as to why Complainant had
failed to cooperate with the EEO investigative process. Complainant thereafter responded with
sixteen responses, dating from November 29, 2017 through December 27, 2017.

On December 13, 2018, the Administrative Judge issued an “Order Entering Judgment” in both
EEOC Case Nos. 450-2017-00422X and 450-2018-00067X. In that decision, the AJ dismissed
the complaints, pursuant to 29 C.F.R. 1614.107(a)(7) based on Complainant’s failure to respond
to the EEO investigator’s requests for information during the course of the investigation.
Despite being provided the opportunity to do so, the AJ concluded that Complainant failed to
show good cause or even really address her failure to cooperate with the investigation in her
multiple submissions in response to the order to show cause.

The Agency did not issue a Final Order within forty days. Complainant filed her appeal on April
8, 2019.2 The Agency then issued its Final Order three days later, on April 11, 2019. We
construe the appeal to be from the AJ’s Order, which became the final decision in this matter.

On appeal, Complainant filed multiple confusing submissions, arguing that the dismissal should
be reversed. In response, the Agency submits that the dismissal for failure to cooperate was
appropriate because Complainant completely failed to cooperate with the investigation into her
complaints.

2 The record indicates that there had been delivery issues with Complainant’s appeal that appear
to be through no fault of her own. We consider her appeal timely filed.
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ANALYSIS AND FINDINGS

The Commission regulation at 29 C.F.R. § 1614.109 (a) provides the appointed Administrative
Judge with full responsibility for the adjudication of the complaint. Subsection 29 C.F.R. §
1614.109(b) states that Administrative Judges may dismiss complaints pursuant to 1614.107, on
their own initiative, after notice to the parties. In addition, the regulations permit the AJ, in
appropriate circumstances, to consider the matters, to which the requested information pertains,
to be established and to enter a decision in favor of the opposing party.

Here, the AJ’s decision became the final decision in this matter. We find that the AJ acted
appropriately, and within her authority, when she found that Complainant failed to show good
cause for her refusal to provide the information which the AJ deemed necessary for her two
complaints to proceed.

Upon review, the Commission finds that Complainant's complaint was properly dismissed, by
the AJ, pursuant to 29 C.F.R. § 1614.107(a)(7), for failure to respond to requests for information
or otherwise proceed with the complaint.

CONCLUSION

Accordingly, we AFFIRM the AJ’s final decision dismissing Complainant's complaint and
entering judgment in favor of the Agency.

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.
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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 (S0610)
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 (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
alterthe 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

September 11, 2019
Date