[Redacted], Elayne C.,1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Sep 2, 2021

Appeal No. 2020003414 (E.E.O.C. Sep. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elayne C.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2020003414 Hearing No. 550-2019-00277X Agency No. DON No.18-62271-00802 DECISION Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s February 10, 2020 final order 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 VACATES the Agency’s final decision and REMANDS the complaint back to the Agency for further processing in accordance with the ORDER below. ISSUES 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 orders. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Purchasing Agent, GS-08, at the Agency’s Naval Postgraduate School in Monterey, California. On March 22, 2018, Complainant filed a formal complaint alleging that the Agency discriminated against her on the basis of reprisal for protected EEO activity when: 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. 2020003414 2 1. on or about June 2017, Complainant received a Notice of Proposed Suspension from her first line supervisor, the Contract Specialist Supervisor (S1), for being disrespectful to said supervisor. This notice also referenced Complainant being disrespectful to her previous supervisor; 2. on or about November 17, 2017, Complainant began to notice that S1 was giving her a decreased workload and when Complainant asked S1 about it, she responded that Complainant should not read too much into it; 3. on or about December 6, 2017, Complainant was called into a meeting by her fourth line supervisor, the Director of Contracting and Logistics Management (S4), and S1, where her purchase card was confiscated because she had committed an Anti-Deficiency Act (ADA) violation; and 4. on December 6, 2017, Complainant was given a Notice of Proposed Removal. On June 5, 2018, the Agency issued a Notice of Acceptance and Partial Dismissal of Claims. The Agency dismissed claims one and four. Claims 1 and 4 were dismissed in accordance with 29 C.F.R. § 1614.107(a)(4) as Complainant had filed an appeal with the Merit Systems Protection Board (MSPB). Specifically, the parties entered into a settlement agreement in MSPB Docket No. SF-0432-17-0319-I-1, signed on August 30, 2017, which became final on October 5, 2017, to resolve the matter raised in claim 1. Complainant filed petition for enforcement with the MSPB, regarding the August 30, 2017 agreement. The petition for enforcement with the MSPB eventually resolved claim 4.2 At the conclusion of the investigation into claims 2 and 3, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. On November 19, 2019, the AJ issued a Notice/Order: Intent to Consider Issuance of Decision Without a Hearing.3 Complainant was provided with 15 days to respond to the Notice and Order proffering evidence of material facts in dispute in this case, or her request for a hearing would be dismissed pursuant to 29 CFR §§ 1614.107(a)(7) and 1614.109(b), and the case returned to the Agency for issuance of a Final Decision. Complainant did not respond. On December 12, 2019, the AJ dismissed Complainant’s hearing request and remanded the case to the Agency for a final decision. On February 10, 2020, the Agency issued its final decision. 2 In a February 28, 2018 decision, the MSPB found that Complainant did not establish that the Agency had breached the training requirement or the requirement that she be not be evaluated during the sixty-days of training. The MSPB found, however, that Complainant had proven, by a preponderance of the evidence, that the Agency did not provide her with the agreed upon sixty- day evaluation period. As such, the petition for enforcement was granted by the MSPB. 3 The AJ noted that claims 1 and 4 were dismissed upon their resolution before the MSPB. 2020003414 3 The Agency concluded that Complainant failed to prove that the Agency subjected her to discriminatory retaliation as alleged. CONTENTIONS ON APPEAL On appeal, Complainant reasserts her belief that her termination and management’s treatment of her was in retaliation for her prior EEO activity. She states that her prior complaint dealt with S2’s favoritism and special treatment of certain employees. She also states that she served as a witness against her former supervisor with regards to a complaint dealing with his sexual harassment towards a female employee. Thus, Complainant believes that she was retaliated against because of her prior EEO activity. The Agency did not provide any appellate arguments on appeal. 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 Chap. 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 AJ Dismissal of Hearing The Commission’s regulations afford broad authority for the conduct of hearings by Administrative Judges. 29 C.F.R. § 1614.109 et seq.; EEO MD-110 at Chap.7 Section III; 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 action 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. 2020003414 4 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. 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 request despite the AJ’s Notice and Order. 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 at Chap. 7. Furthermore, we note that a sanction is not appropriate where a complainant opts not to oppose a motion or notice of intent to issue summary judgment. We note that the Notice issued by the AJ expressed his intent to issue a decision without a hearing. However, the AJ proceeded to dismiss the matter pursuant to 29 C.F.R. §1614.107(a)(7). We find that there was sufficient information in the record for the AJ to issue a decision on the merits. The Commission has held that as a general rule, a complaint should not be dismissed when it has sufficient information on which to base an adjudication. See Ross v. U.S. Postal Serv., EEOC Request No. 05900693 (Aug. 17, 1990); Brinson v. U.S. Postal Serv., EEOC Request No. 05900193 (Apr. 12, 1990). It is only in cases where the Complainant has engaged in delay or contumacious conduct and the record is insufficient to permit adjudication that the Commission has allowed a complaint to be dismissed for failure to cooperate. See Card v. U.S. Postal Serv., EEOC Request No. 05970095 (Apr. 23, 1998); Kroeten v. U.S. Postal Serv., EEOC Request No. 05940451 (Dec. 22, 1994). In that regard, we find that the AJ erred when he failed to address the merits of Complainant's complaint. Accordingly, we VACATE the FAD and REMAND this matter 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 decision 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 San Francisco District Office a renewed request for a hearing on this complaint, the complaint file, and a copy of this appellate decision. 2020003414 5 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). 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. 2020003414 6 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. 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. 2020003414 7 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 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, Director Office of Federal Operations September 2, 2021 Date