[Redacted], Dinah L., 1 Complainant,v.Christine Wormuth, Secretary, Department of the Army, Agency.

Equal Employment Opportunity Commission

Sep 21, 2021

Appeal No. 2020003164 (E.E.O.C. Sep. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dinah L.,1 Complainant, v. Christine Wormuth, Secretary, Department of the Army, Agency. Appeal No. 2020003164 Hearing No. 410-2017-00152X Agency No. ARCEJACK14MAY01687 DECISION On April 14, 2020, 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 March 10, 2020, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. ISSUES PRESENTED The issue presented herein is whether the EEOC Administrative Judge (AJ) erred when dismissing Complainant’s hearing request as a sanction for not complying with orders. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Equal Employment Opportunity (EEO) Director, Disability Program Manager, at the Agency's U.S. Army Garrison in Yongsan, South Korea. 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. 2020003164 2 On June 12, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), sex (female), color (black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when in response to an annual background check, the U.S. Army Criminal Investigation Command (CID) issued a memorandum dated April 3, 2014, about the disposition of a criminal investigation on Complainant starting in 2003, containing false information. The Agency initially dismissed the compliant on June 18, 2014. Complainant filed an appeal. In Dinah L. v. Dep’t of the Army, EEOC Appeal No. 0120142745 (Apr. 12, 2016), we reversed the Agency’s final decision as inappropriate and remanded the matter to the Agency for an investigation into her complaint. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. On August 9, 2019, the assigned AJ issued an Acknowledgment and Order Scheduling Initial Conference. On October 21, 2019, the AJ issued an Order memorializing a teleconference with the parties’ counsels held on September 9, 2019. The Order established discovery deadlines; and advised the parties that they were required to initiate discovery by November 11, 2019, and respond to any discovery requests within 20 days, or by December 2, 2019. The Order also instructed the parties that Motions to Compel must be filed within ten calendar days for any deficient response to discovery. The Order on Initial Conference also stated that failure to follow this or other orders of the Administrative Judge may result in sanctions. The Agency initiated discovery on November 7, 2019, requesting financial and employment records from Complainant. On December 4, 2019, the Agency filed a Motion to Compel, requesting that the AJ compel Complainant to respond to its discovery request as well as quash Complainant’s discovery requests as untimely. On December 6, 2019, Complainant provided some responses to the Agency’s discovery requests but did not produce any of the requested financial and employment records. On December 18, 2019, the AJ granted the Agency’s motion, and compelled Complainant to provide responses to the Agency’s discovery requests in five calendar days, or by December 23, 2019. In granting the Agency’s Motion to Compel, the AJ also instructed the parties that if Complainant did not provide responses to discovery, the Agency was to file a Motion for Sanctions by December 30, 2019, and Complainant was to provide her response by January 6, 2020. The AJ reiterated to Complainant that failure to comply with the Order on the Motion to Compel could result in sanctions including the dismissal of the complaint. 2020003164 3 Complainant failed to comply with the AJ’s order. On December 31, 2019, the Agency filed a motion requesting a decision be issued in its favor due to Complainant's failure to comply with judicial orders to produce discovery. Complainant did not provide a response to the Agency’s motion by January 6, 2020. On January 18, 2020, Complainant filed a motion for summary judgment. On January 22, 2020, the AJ dismissed Complainant’s hearing request as a sanction for Complainant’s failure to follow AJ’s orders and remanded the complaint back to the Agency for issuance of a Final Agency Decision (FAD). The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged. In its FAD, the Agency also indicated that it dismissed Complainant’s complaint because Complainant failed to comply with judicial orders regarding discovery. CONTENTIONS ON APPEAL On appeal, Complainant asserts, through counsel, that the AJ failed to acknowledge that at the initial conference, she specifically stated that the parties need not produce discovery material in the ROI. Complainant indicates that based on the AJ’s statements, she did not fail to obey a discovery order, asserting that she already produced the requested information in the ROI; and adding that perhaps two of the requested documents were not in the ROI. Complainant also asserts that she responded to the Agency’s December 4, 2019, Motion to Compel. Accordingly, Complainant states, no dismissal was warranted. Complainant contests the AJ’s failure to rule on her Summary Judgment motion. Complainant also argues that the AJ’s dismissal of her complaint was a drastic remedy, asserting that the AJ did not consider lesser sanctions. Complainant requests that the Commission reverse the Agency’s FAD and her complaint be remanded to the AJ for disposition on the merits. In its Appeal Brief, the Agency reiterates that Complainant failed to follow judicial orders regarding discovery. The Agency asserts that it never received Complainant’s financial information requested through timely issued discovery. The Agency asserts that the requested information, which Complainant allegedly failed to produce, was essential, ordered, and not provided. The Agency requests that the AJ’s opinion be upheld, and the Agency’s decision be affirmed. 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 (EEO MD-110), 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, 2020003164 4 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 AJ’s Cancellation of the Hearing The Commission’s regulations and guidance afford broad authority to AJs for the conduct of hearings. 29 C.F.R. §1614.109 et seq.; EEO MD-110 at Chap. 7, § III(D). An AJ has inherent powers to conduct a hearing and issue appropriate sanctions, including a default judgment. Id.; see Matheny v. Dep’t of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005); Rountree v. Dep’t of the Treasury, EEOC Appeal No. 07A00015 (Jul. 17, 2001). Our regulations provide that where a party fails to respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. §1614.109(f)(3). An AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on 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, e.g., payment of costs and expenses by the non-complying party. Id. An AJ must first issue a Notice to Show Cause to the non-complying party. EEO MD-110 Chap. 7, § III(D), n. 6; see DaCosta v. Dep’t of Educ., EEOC Appeal No. 01995992 (Feb. 25, 2000). In general, the Commission has held that sanctions, while corrective, also act to prevent similar misconduct in the future and must be tailored to each situation, applying the least severe sanction necessary to respond to the party’s failure to show good cause for its actions, as well as to equitably remedy the opposing party. See Gray v. Dep’t of Def., EEOC Appeal No. 07A50030 (Mar. 1, 2007); Rountree, supra; Hale v. Dep’t of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). The Commission has emphasized that the purpose of a sanction is to deter the underlying conduct of the non-complying party. See Barbour v. U. S. Postal Serv., EEOC Appeal No. 07A30133 (Jun. 16, 2005). The factors pertinent to “tailoring” a sanction, or determining whether a sanction is, in fact, 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; and (4) the effect on the integrity of the EEO process. Gray, supra; Voysest v. Soc. Sec. Admin., EEOC Appeal No. 01A35340 (Jan. 18, 2005). We find that the AJ’s issuance of a sanction in the form of the dismissal of Complainant’s hearing request was not a drastic remedy as Complainant contended on appeal; nor was it an abuse of discretion. Rather, the dismissal was narrowly tailored to Complainant’s actions. Complainant failed to respond to the Agency’s discovery request despite repeated orders and warnings by the AJ. We note that the AJ did not issue a show cause order prior to ordering any sanctions, contrary to the procedures in EEO MD-110, Chapter 7. 2020003164 5 However, regarding the factors set forth in Gray for determining the appropriateness of the sanction, we find the nature of Complainant’s non-compliance to be egregious and note that she did not provide a response to the AJ’s order, even if only to state that she already produced the requested information in the ROI. Under our decision in Campbell, Jr. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120112704 (Oct. 21, 2011) (citing Council v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120080321 (Apr. 9, 2010)), we note that we have previously found that the notice given in the Acknowledgment and Order of the possibility of sanctions may function as the equivalent of a Notice to Show Cause in an instance such as this. In addition, in the present case, we note that, among other things, the AJ’s Order on Initial Conference stated that failure to follow this or other orders of the Administrative Judge may result in sanctions. Additionally, the AJ’s December 18, 2019, instructions also cautioned Complainant that failure to comply with the AJ’s Order granting the Agency’s motion to compel could result in the dismissal of the complaint, pursuant to 29 C.F.R. §§ 1614.107(a)(7); 109(b); 109(f)(3). Upon review of the record as a whole, we find that the AJ’s sanction was narrowly tailored to the actions of Complainant and the dismissal of the hearing by the AJ was appropriate. Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Tex. Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency’s actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep’t. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep’t. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep’t. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Complainant alleged that she was subjected to discrimination when CID issued a memorandum dated April 3, 2014, about the disposition of a criminal investigation on her starting in 2003, which contained “false information.” 2020003164 6 On appeal, Complainant restated that there was no finding of wrongdoing on her part and that the CID report about the investigation comes up on her background checks. The Operations Officer stated that the memorandum was generated based on a name check request of the criminal offense in the database and that Complainant could have requested expungement of the record through a request of the CID Prime Records Center. The Operations Officer indicated that Complainant’s protected bases were not factors in the memorandum. We find that the Agency has provided legitimate, nondiscriminatory reasons, we turn to Complainant to establish pretext. We note that Complainant merely asserted without evidence that discrimination occurred. Based on our review, we conclude that Complainant has not shown that she was subjected to discrimination as alleged. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s final decision finding no discrimination. 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 2020003164 7 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 (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. 2020003164 8 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 September 21, 2021 Date