[Redacted], Diedre A., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity Commission

Jun 16, 2021

Appeal No. 2020001309 (E.E.O.C. Jun. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Diedre A.,1 Complainant, v. Denis R. McDonough, Secretary, Department of Veterans Affairs, Agency. Appeal No. 2020001309 Hearing No. 520-2018-00134X Agency No. 200H-0642-2017102581 DECISION Complainant 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 October 11, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission VACATES the Agency’s final decision and REMANDS the complaint for further processing. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Patient Safety Manager at the Veterans Affairs Medical Center in Philadelphia, Pennsylvania. On June 23, 2017, Complainant filed an EEO complaint, which was subsequently amended, alleging that the Agency discriminated against her and subjected her to a hostile work 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. 2020001309 2 environment on the bases of sex (female), age (over 40), and in reprisal for initiating the instant complaint2 when: 1. On March 27, 2017, she was issued a “Fully Satisfactory” for her performance rating/proficiency report, which was a downgrade from her previous "Outstanding. 2. On April 5, 2017, the Quality Management Director (QMD) almost struck her on her hand with a pen and asked her if she would understand him if he spoke Chinese to her. 3. On April 18, 2017, the QMD informed her that he would be meeting with her weekly and she would receive counseling similar to marriage counseling. 4. On April 27, 2017, the QMD criticized her conduct based on Administrative Investigation Board (AIB) findings of which he had no direct knowledge; counseled her and a coworker in each other's presence and accused them of collusion; threatened them with disciplinary action if their conduct did not improve; failed to provide the AIB report or afford Complainant the opportunity to rebut the findings; and, told her that she needed to be truthful in the future. 5. On July 31, 2017, she was issued a reprimand for improper conduct, which she believes was prompted by the QMD. 6. On approximately August 7, 2017, during a telephone call pertaining to Complainant being summoned for jury duty, the QMD repeatedly screamed at her and threatened her with disciplinary action despite Complainant giving him advance notice of her selection for jury duty. 7. On approximately August 8, 2017, a coworker gave her extra work assignments despite her scheduled jury duty. At the conclusion of the investigation, 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. On February 4, 2019, the AJ issued a Case Acknowledgment and Notice of Prehearing Conference which set a prehearing conference on March 27, 2019. The parties were informed that five days prior to the prehearing conference, they were to file a joint prehearing statement. In compliance with the AJ’s instructions, the parties timely filed a five-page Joint Prehearing Statement which included a statement of the issues, joint stipulations, discovery, the status of settlement negotiations, motions, remedies, and witnesses. 2 The Agency noted Complainant did not initiate EEO Counselor contact until April 13, 2017; therefore, the basis of reprisal only applied to the matters raised in claims 3 - 7. 2020001309 3 On March 27, 2019, the AJ held a prehearing conference with both parties during which the report of investigation was reviewed and case management was discussed. On April 4, 2019, the AJ issued a Case Management Order, which noted that “[i]f conciliation fails, the parties shall no later than June 3, 2019 file a Joint Prehearing Statement.” The parties did not submit the joint prehearing statement by the deadline. On July 10, 2019, the AJ issued an Order to Show Cause, in which he ordered Complainant “to show cause why the case should not be dismissed for failure to comply with the April 4, 2019 Order.” The deadline to respond to the Order to Show Cause was July 17, 2019. On July 17, 2019, Complainant submitted a response to the Order to Show Cause explaining her inadvertent failure to submit the report, and, simultaneously with the response, submitted a 14- page Joint Prehearing Statement which was prepared by both parties. On July 17, 2019, the AJ issued a Dismissal Order: Sanctions which dismissed Complainant’s hearing request and remanded the case to the Agency for the issuance of a final decision. The AJ stated Complainant’s failure to respond to the Case Management Order indicated: (1) indifference to the EEO process, (2) violation of EEOC Orders, and (3) Complainant’s failure to prosecute the complaint. Furthermore, the AJ determined the failure to comply hindered the administrative processing of the case. The Agency issued a final decision on October 11, 2019. The Agency’s decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant filed the instant appeal. On appeal, Complainant contends that the AJ’s Dismissal decision was overly harsh, was one-sided, and that there was no evidence to support the AJ’s finding that the failure was intentional. ANALYSIS AND FINDINGS 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”). 2020001309 4 Dismissal of Complainant’s Hearing Request as a Sanction The Commission’s regulations confer upon its AJs very broad responsibility for adjudicating an EEO complaint once a complainant’s hearing request has been granted, and that responsibility gives the AJs wide latitude in directing the terms, conduct, or course of EEO administrative hearings. Chere S. v. Gen. Serv. Admin., EEOC Appeal No. 0720180012 (Nov. 30, 2018). The AJ’s discretionary authority includes the power to impose sanctions upon a party that fails to comply with his orders. Id. When a complainant, 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 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). Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party’s failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Factors pertinent to “tailoring” a sanction, or determining whether a sanction is even warranted, include: (1) the extent and nature of the non-compliance, including the justification presented by the non- complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; (4) the number of times the party has engaged in such conduct; and (5) the effect on the integrity of the EEO process as a whole. Id. Applying the first factor, the non-compliance consisted of a failure by Complainant and the Agency to submit a Joint Prehearing Statement by June 3, 2019. Complainant’s justification for the non-compliance, as set forth in her timely response to the AJ’s Order to Show Cause, was due to an inadvertent oversight of that portion of the Case Management Order. Applying the second factor, there is no prejudicial effect on the opposing party, as the Agency was equally non-compliant in its obligation to submit a Joint Prehearing Statement. Applying the third factor, we note that the Case Management Order also advised the parties that they may commence discovery and set out timeframes governing discovery. 2020001309 5 Complainant notes that she timely served discovery requests on the Agency. Further, we note that while the Joint Prehearing Statement was not submitted by June 3, 2019, it was submitted on July 17, 2019, prior to the AJ’s dismissal of the hearing request. Applying the fourth factor, there appears to be only this single incident of non-compliance noted by the AJ. In applying the fifth factor, we have consistently held in recent decisions that dismissal of a hearing request as a sanction is only appropriate in extreme circumstances. One such circumstance is when a complainant engages in contumacious conduct. Cassey B. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019004838 (Sept. 24, 2020); Cecile T. v. Dep’t of the Treasury, EEOC Appeal No. 2019002373 (Sept. 22, 2020); Carolyn M. v. U.S. Postal Serv., EEOC Request No. 2019004843 (March 10, 2020). Examples of contumacious conduct warranting dismissal of hearing requests include: Charlie K. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2019002293 (Sept. 22, 2020) (failure to provide investigative affidavit during agency investigation and failure to provide answers to interrogatories during discovery despite being granted multiple extensions in both phases of the proceeding, as well as failure to appear at pre-hearing conference); and Cleo S. v. U.S. Postal Serv., EEOC Appeal No. 0120181406 (Feb. 28, 2020) (failure to participate in email communications being sought by the Agency and to produce documentation ordered by AJ in a manner demonstrating disregard for administrative process and unwillingness to comply with AJ’s orders despite warning of consequences). Absent a showing of contumacious conduct, hearing requests may be dismissed where a complainant fails to pursue his or her claim with due diligence. Alice S. v. Soc. Sec. Admin., EEOC Appeal No. 2019002475 (Sept. 22, 2020) (failure to respond to emails from AJ that included initial conference order and order to show cause due to overlooking those emails); Robert A. v. U.S. Postal Serv., EEOC Appeal No. 0120182698 (Feb. 21, 2020) (failure to respond to order to show cause despite having received order from AJ via email, and failure to provide evidence that he was incapacitated and unable to comply with the order). There must be a showing that Complainant either willfully disobeyed the AJ’s orders or unjustifiably failed to respond to those orders to warrant dismissal of the hearing request as a sanction. In the absence of either circumstance, we cannot find that the integrity of the process had been so compromised as to warrant the most severe sanction. When a lesser sanction would normally suffice to deter the conduct and to equitably remedy the opposing party an AJ may be abusing her discretion by dismissing the hearing. See Edward W. v. Soc. Sec. Admin., EEOC Appeal No. 2019005957 (April 15, 2021) (dismissal of hearing request rejected on appeal where AJ dismissed hearing request outright after only one day rather than issue an order to show cause depriving complainant of his opportunity to respond to the agency’s motion for sanctions and demonstrate that his responses to its discovery requests were adequate); Georgianne B. v. Dep't of Agric., EEOC Appeal Nos 0120181591 & 0120181592 (Feb. 27, 2020) (dismissal of hearing request rejected on appeal where AJ dismissed hearing request outright rather than grant Agency's motion to compel discovery or limiting complainant's discovery when complainant failed to appear at the initial conference and failed to respond to a discovery request despite the fact that the parties and the AJ remaining in continuous email correspondence in an effort to litigate the case); Drucilla Y. v. Dep't of the Treasury, EEOC Appeal No. 0120182728 (Feb. 27, 2020) (dismissal of hearing request rejected on appeal where complainant made earnest but 2020001309 6 unsuccessful effort to comply with an onerous acknowledgement and scheduling order). Moreover, it is well-settled that before a sanction can be imposed, the non-complying party must be put on notice that it could be sanctioned for its conduct and this is typically accomplished via an order to show cause. Chere S., supra. Show cause orders are unnecessary where a party has filed a motion for specific sanctions and the non-moving party has had an opportunity to respond. Id. (Emphasis added). With the foregoing considerations in mind, we find that Complainant’s timely response to the AJ’s Order to Show Cause reflects that Complainant had not repeatedly failed to comply with deadlines set by the AJ. Complainant did miss one deadline - submission of the Joint Prehearing report - which the Agency also failed to meet. Complainant did not provide an adequate excuse. However, we find the record before us is insufficient to demonstrate that Complainant had engaged in the kind of willful or obstinate refusal to comply with an AJ’s order that typifies contumacious conduct or that he willfully failed to act with due diligence. We therefore find that the AJ’s dismissal of Complainant’s hearing request was too harsh a sanction in that it prematurely curtailed the proceeding. See Sean L. v. Department of the Air Force, EEOC Appeal No. 2020002537 (June 2, 2021); Ela O. v. Dep’t of the Treasury, EEOC Appeal Nos. 2019001558, et seq. (Sept. 21, 2020). CONCLUSION The Commission VACATES the Agency’s final decision and REMANDS the complaint to the Agency for further action in accordance with this decision and the Order herein. ORDER The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the EEOC’s New York District Office within 15 calendar days of the date this decision becomes final. 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 hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. §1614.109 and the Agency shall issue a final action 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). 2020001309 7 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). 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. 2020001309 8 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. 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. 2020001309 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 16, 2021 Date