[Redacted], Ciera B., 1 Complainant,v.Martin J. Walsh, Secretary, Department of Labor (Occupational Safety & Health Administration), Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2020000030 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ciera B.,1 Complainant, v. Martin J. Walsh, Secretary, Department of Labor (Occupational Safety & Health Administration), Agency. Appeal No. 2020000030 Hearing No. 520-2018-00485X Agency Nos. CRC-15-02-124; CRC-16-02-126; CRC-17-02-119 DECISION Complainant timely filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s July 18, 2019, 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. For the following reasons, the Commission VACATES the Agency’s final decision. ISSUE PRESENTED The issue presented is whether the EEOC Administrative Judge (AJ) erred when dismissing Complainant’s hearing request as a sanction for not complying with an order. 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. 2020000030 2 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Whistleblower Investigator, GS-1801-12, in the Agency’s New York Region (Region 2). In three formal complaints, dated August 27, 2015, August 26, 2016, and September 28, 2017, Complainant alleged that the Agency subjected her to disparate treatment and harassment on the bases of age, race (Kenyan American/African American), color (bronze/dark), religion (perceived to be Muslim), national origin (Kenya), sex (female), disability (spouse disabled) and/or retaliation for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. At the conclusion of separate investigations, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing for each of her complaints. On September 28, 2018, the assigned AJ consolidated and restated Complainant’s claims. The AJ determined that the following claims would be adjudicated: Whether the Agency subjected Complainant to disparate treatment and/or a hostile work environment based upon Complainant’s race (Kenyan American/African American), color (bronze/dark), religion (perceived to be Muslim), national origin (Kenya), sex (female), disability (spouse disabled) and/or retaliation for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: 1. On March 25, 2014, Complainant was issued a letter of reprimand for allegedly failing to follow proper leave procedures; 2. On or about May/June 2014, Complainant was denied a request to move to an office closer to her home; 3. On April 13, 2015, Complainant was issued a letter of reprimand for allegedly failing to complete an assignment before going on leave; 4. On September 11, 2015, Complainant was removed from a case on which she was working, after the complainant in the case wrote a letter criticizing Complainant’s supervisor and praising Complainant’s work; 5. On October 5, 2015, Complainant received a “minimally satisfactory” yearly performance appraisal; 6. On October 5, 2015, Complainant was directed to attend a two-week course for newly hired investigators, even though: (1) she already took the course; (2) she is the second 2020000030 3 most senior investigator in her Region; (3) no other senior investigator has been required to take the course for a second time; and (4) she previously requested Family Medical Leave Act (FMLA) leave for the time period during which the course occurred so should visit her ailing father; 7. On October 9, 2015, Complainant was placed under an internal investigation for allegedly disclosing internal communications to the complaint in the case referenced in allegation 4. 8. In November 2015, Complainant was directed to attend an additional training course for new investigators in September 2016, even though (1) she already took the course; (2) she is the second most senior investigator in her Region; (3) no other senior investigator has been required to take the course for a second time; 9. On July 27, 2016, Complainant was not selected for the Supervisory Investigator position under Vacancy Announcement MS-16-BNY-OSHA-146; 10. On March 2, 2017, Complainant was issued a disciplinary memo; and 11. On June 20, 2017, Complainant was issued a disciplinary memo. Dismissal of Hearing Request On March 14, 2019, the AJ granted Complainant’s request to extend the deadlines to respond to the Agency’s discovery demands and reset summary judgment motion deadlines. Complainant was supposed to serve responses to the Agency’s discovery requests by March 22, 2019, and discovery was scheduled to conclude on April 19, 2019. On May 14, 2019, Agency counsel notified the AJ that Complainant failed to provide complete responses to the Agency’s discovery requests. Specifically, Agency counsel asserted that Complainant provided incomplete interrogatory responses and no responses on requests for admissions although Complainant’s counsel had stated two months prior that Complainant intended to supplement her responses. Agency counsel added that on May 5, 2019, Complainant’s counsel stated that he would speak with Complainant and get back with Agency counsel. In response, Complainant’s counsel stated that he called Agency counsel to discuss “the outstanding nature of discovery” on May 10, 2019, but he did not receive a response. Complainant’s counsel reported that he expected to have the supplementary responses that week. On May 22, 2019, Agency counsel informed the AJ that Complainant still had not provided any supplemental discovery responses. On May 22, 2019, the AJ denied Complainant’s hearing request on the grounds that Complainant failed to follow orders. Specifically, the AJ found that Complainant failed to comply with discovery deadlines despite multiple extensions. 2020000030 4 Noting that the response was due two months earlier, on March 22, 2019, the AJ concluded that Complainant and her counsel had more than enough time to respond to the Agency’s discovery demands. Upon receipt of the Order, Complainant’s counsel asserted that almost sixty (60) pages of responses to the Agency’s interrogatories and request for production were provided on March 13, 2019, and that the Agency did not report deficiencies until May 5, 2019. Complainant’s counsel added that Complainant was unable to provide draft responses to the requests for admissions until May 12, 2019, which he had reviewed and hoped to serve that week. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the final Agency decision (FAD), the Agency solely addressed complaint CRC-17-02-119, allegations 10 and 11.2 The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. On July 22, 2019, Complainant appealed the decision. Upon notice that the AJ had remanded all three cases, the Agency issued a FAD on the remaining two complaints on September 30, 2019 and incorporated the earlier FAD into its analysis. CONTENTIONS ON APPEAL On appeal, Complainant contends, through counsel, that the AJ’s dismissal of the hearing constitutes harmful procedural error. Complainant asserts that dismissal was not the least severe sanction remedy for Complainant’s noncompliance with discovery demands. Complainant contends that the hearing dismissal was improper because the Agency failed to file a timely motion to compel discovery; the Agency’s complaints about insufficient discovery were untimely and fell outside of the discovery phase; and the AJ failed to properly issue a show cause order before issuing the dismissal order and remand for a FAD. Complainant further asserts that dismissal was improper under the factors set forth in Royal v. Dep’t of Veterans Affairs, EEOC Appeal No. 0720070045 (Sept. 25, 2009) because the delay was not extreme; there was very little, if any, prejudice to the Agency; the delay in responding to the Agency’s Request for Admissions did not result in significant consequences; and the delay would not have an adverse effect on the integrity of the EEO process. Complainant adds that Agency erroneously determined that she did not establish a prima facie case of disparate treatment discrimination, reprisal, and hostile work environment harassment. In response, the Agency contends that Complainant failed to substantiate any alleged errors in the FAD. 2 The Agency asserted that it issued the FAD only on the issues identified in allegations 10 and 11 because the AJ’s remand order only identified CRC-17-02-119 and did not contain information on Complainant’s other two complaints. The Agency further stated that the order did not indicate that the complaints were consolidated and that it received the AJ’s order consolidating the complaints on August 2, 2019. 2020000030 5 The Agency asserts that the AJ’s dismissal order was appropriate because Complainant had pre- hearing notice that failure to follow the notice or any other orders could result in sanctions. The Agency adds that Complainant and her counsel missed the discovery deadline by two months after two extensions and in considering the Royal factors, Complainant provided no explanation for the two-month delay; Agency counsel was prejudiced by not receiving supplemental responses because Complainant’s initial responses were deficient; and the EEO process was delayed because of Complainant’s failure to supplement her responses. The Agency maintains that it provided legitimate, nondiscriminatory and nonretaliatory reasons for its actions and that Complainant failed to show that those reasons were pretext. The Agency adds that Complainant failed to prove a hostile work environment claim because she did not show that the alleged harassment was motivated by discrimination or retaliation, or that the conduct was severe or pervasive. 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 The Commission’s regulations afford broad authority for the conduct of hearings by Administrative Judges. 29 C.F.R. § 1614.109 et seq; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), (as revised Aug. 5, 2015); Rountree v. Dep’t of Treasury, EEOC Appeal No. 07A00015 (July 13, 2001). The regulations state that an AJ shall, in appropriate circumstances, take such as the AJ deems appropriate when a party “…fail[s] 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 witnesses(es).” 29 C.F.R. § 1614.109(f)(3)(i). EEOC Regulation 29 C.F.R. §1614.109(f)(3) specifically sets forth the types of sanctions an AJ may take when required by the appropriate circumstances. An AJ may: 1) draw an inference that the requested information would have reflected unfavorably to the non-complying party; 2) consider the requested information to be established in favor of the opposing party; 3) exclude other evidence offered by the non-complying party; 4) issue a decision fully or partially in favor of the opposing party; or 5) take other action deemed appropriate. Id. 2020000030 6 In the present case, however, we find that the AJ erred in not providing Complainant with an opportunity to respond prior to the dismissal of the hearing request. The Commission has previously held that prior to the imposition of sanctions, the party against whom such sanctions are to be imposed is entitled to an opportunity to respond and show cause why sanctions should not be imposed. Miguelina S. v. Dep’t of Justice, EEOC Request No. 2019002953 (Jan. 27, 2020). We do not condone Complainant’s failure to respond to the Agency’s discovery request despite repeated extensions. However, the AJ should have followed proper procedures and issued a show cause order prior to ordering any sanctions according to the procedures in EEO MD-110, Chapter 7. We need not address whether an appropriately tailored sanction was imposed because we have concluded that, in the absence of a show cause order, the AJ erred in imposing a sanction authorized by 29 C.F.R. §1614.109(f)(3). Accordingly, we remand this matter for a hearing in accordance with the order below. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency’s final decisions and REMAND the appeal back to the Agency for further processing in accordance with the ORDER below. ORDER Within 30 calendar days of the date this decision is issued the Agency shall submit to the Hearings Unit of the EEOC’s New York District Office a renewed request for a hearing on this complaint, the complaint file, and a copy of this appellate decision. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall issue a decision in accordance with 29 C.F.R. §1614.110. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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). 2020000030 7 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2020000030 8 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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. 2020000030 9 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 June 7, 2021 Date