U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ellen M.,1 Complainant, v. Thomas J. Vilsack, Secretary, Department of Agriculture, (Grain Inspection, Packers and Stockyards Administration) Agency. Appeal No. 2020001071 Hearing No. 460-2018-00362X Agency No. GIPSA-2017-00776 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 November 25, 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND Complainant worked as an Agricultural Commodities Technician, GS-1981-04, at the Federal Grain Inspection Services Office in League City, Texas. She was employed on an intermittent basis, meaning that full-time employees had priority in terms of work assignments. On October 4, 2017, Complainant filed an EEO complaint in which she alleged that the Agency discriminated against her and subjected her to a hostile work environment on the bases of race 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. 2020001071 2 (African-American), sex (female), color (Black), and reprisal (prior protected EEO activity) when2: 1. Between [April 19 and April 21, 2017], management denied Complainant's request for an opportunity for advancement; 2. On an unspecified date in June 2017, management denied Complainant’s request to be placed on the weekend schedule; 3. On an unspecified date, management denied Complainant's request to work between the dates of June 5 through July 13, 2017; 4. On July 1, 2017 and on an unspecified date between August and September 2016, management did nothing when Complainant was threatened and cursed at by coworkers; and 5. On July 13, 2017, management informed Complainant that her services as an intermittent employee would no longer be needed.3 Complainant identified the following individuals as the responsible management officials: the Assistant Field Office Manager, her second-line supervisor (S2) and the Field Office Manager, her third-line supervisor (S3). At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of her right to request a hearing before EEOC Administrative Judge (AJ). Complainant requested a hearing and on December 6, 2018, the AJ assigned to the case scheduled the initial status conference via telephone for January 31, 2019. This initial order specified that failure to follow it or any other orders of the AJ may result in sanctions pursuant to 29 C.F.R. § 1614.109(f)(3). Complainant failed to appear for the initial telephonic status conference and on February 1, 2019, the AJ issued an order to show cause directing Complainant to explain, in writing, why she should not be sanctioned for failing to attend the conference. Complainant failed to respond to the order to show cause, and on March 25, 2019, the AJ issued an order dismissing Complainant’s hearing request, stating: Complainant’s conduct has prejudiced the opposing party since the agency was unable to engage in productive discussions with the Administrative Judge about processing and resolving the case. Complainant’s non-compliance has delayed the processing of the instant case and burdened the Commission with additional tasks. Finally, Complainant’s non-compliance has an injurious effect on the integrity of 2 These incidents have been arranged in chronological order for clarity. 3 The Agency dismissed two additional claims for untimely EEO Counselor contact. Complainant raised no challenges regarding these matters and the Commission finds no basis to disturb the dismissal. 2020001071 3 the process as a whole since it promotes an atmosphere of neglect, disrespect, and disobedience. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination or reprisal as alleged. Incident (1): Complainant alleged that in or around April 2017, management denied her request for the opportunity to advance. Specifically, Complainant said that she was working at the Beaumont location and asked the supervisor there if she could perform another position. She stated that the supervisor told her that “full timers” had first choice on other positions, but he offered one comparative white male intermittent employee to train on the weight logs. IR 57-58. Complainant sent an email to S2 regarding what she characterized as unfair treatment by the Beaumont supervisor in handing out work assignments. IR 99. S2 met with the supervisor and asked him to explain how he made rotational assignments. The supervisor responded to S2 stating “I treat everyone fairly.” IR 100. S2 later met with Complainant and the supervisor and both expressed satisfaction regarding the resolution of the matter and indicated that they would both work to improve their professional relationship. Complainant stated that she then began working at another location and did not work with that supervisor again. Incidents (2) & (3): Complainant claimed that on unspecified dates in June 2017, S2 denied her request to be placed in the weekend schedule and had also denied her request to work between the dates of June 5 and July 13, 2017. She acknowledged that work during the week was assigned to regular full-time employees and that intermittent employees would be offered hours on a need-be basis. She asserted that intermittent employees were to be given priority over full- time employees over the weekend. IR 59-61. Both S2 and S3 affirmed that intermittent employees did not have a regular schedule and were used whenever they were needed, and that this was true on the weekends as well as during the week. IR 73, 79-80. Incident (4): Complainant alleged that she was threatened and cursed at by two coworkers on July 1, 2017, and that the same thing had happened previously, on an unspecified date between August and September of 2016. IR 63-66. S3 averred that he was unaware of any of these incidents. IR 74-75. S2 also averred that he was unaware of the allegations, pointing out that he was not a part of the League City Field Office in 2016. IR 80-81. Incident (5): Complainant claimed that on July 13, 2017, S3 informed Complainant that her services as an intermittent employee would no longer be needed, and that her job performance had never been brought up. IR 54-55, 61-62. S3 denied that he told Complainant that her services would no longer be needed; rather, he informed Complainant that she would not be used on the daily rotation. S2 and S3 further averred that all of the supervisors were consulted when reviewing the performance of the intermittent employees, that her performance was reviewed along with those of the rest of the intermittent employees, and that the supervisors had come to the unanimous conclusion that Complainant was not benefitting the effectiveness of the Agency’s daily operations. IR 70-71, 78. 2020001071 4 CONTENTIONS ON APPEAL On appeal, Complainant argues: I was not aware of the paperless rule in how the judge would be corresponding with me until I call him and this was after his final decision was made. I have used the email on file with others in this case only because the emailer informed me an email would be arriving and to look for the email. Not until now am I hearing of the paperless rule within the organization. I am hoping to be given a fair hearing in this great injustice. The Agency responds: Complainant’s brief only argues that her complaint should not be dismissed based upon her allegations that she was not aware of the Administrative Judge communicating with her via email. However, in the same document, the Complainant admits to having communicated with the parties via email. 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”). Dismissal of 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 the 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, 2020001071 5 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, Complainant’s non-compliance consisted of failing to appear for the January 31, 2019 initial telephonic status conference as she was ordered to do by the AJ in the scheduling order dated December 6, 2018. Complainant also failed to respond to the AJ’s order to show cause dated February 1, 2019. It is not clear from the record, however, that Complainant’s two instances of non-compliance had substantially prejudiced the Agency or had resulted in a significant delay in justice. Thus, while Complainant provided no justification for her non-compliance; we find that the impact of the second, third, and fourth factors upon the processing of this complaint was minimal. 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 the complainant engages in contumacious conduct, not merely negligence. 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). 2020001071 6 Absent a showing of contumacious conduct, hearing requests may be dismissed where the 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). In other words, there must be a showing that Complainant either willfully disobeyed the AJ’s orders or unjustifiably failed to respond to those orders in order to justify dismissal of the hearing request as a sanction. In the absence of either circumstance, we cannot find that the integrity of that 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 his discretion by dismissing the hearing. See 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 the complainant's discovery when the 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 the complainant made earnest but unsuccessful effort to comply with an onerous acknowledgement and scheduling order). With the foregoing considerations in mind, we find at the outset that Complainant’s non- compliance did not rise to the level of contumacious conduct, unlike the scenarios in Charlie K. and Cleo S., in which the Complainants committed multiple instances of non-compliance in a manner that demonstrated flagrant disregard to the process. But we also find, unlike the situations in Georgianne B. and Drucilla Y., Complainant failed to pursue her claim with due diligence, as evidenced by her failure to appear at the initial status conference and tell the AJ why she did not appear. Complainant’s conduct was more akin to that exhibited by the Complainants in Alice S. and Robert A.. She has not demonstrated that she was incapacitated in any way or that she had been prevented from complying with the discovery orders. Indeed, Complainant provides no explanation for failing to comply with the AJ’s Orders other than stating that she did not realize he would be communicating via email, yet she herself was communicating via email. Complainant's conduct in the instant case reflects her unjustified failure to exercise the due diligence necessary for the administrative process to function properly. Ultimately, we find that the AJ did not abuse his discretion, based upon Commission precedent, when he dismissed Complainant’s hearing request. We find, however, that rather than remanding the matter to the Agency for a final decision, since the record was complete, the AJ could have issued a decision fully or partially based upon the record before him at the time. The AJ is hereby advised to consider such a lesser sanction in the future. Furthermore, since the merits of Complainant’s complaint have since been addressed by the Agency, the matter is properly ripe for review. 2020001071 7 Disparate Treatment To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Her first step would generally be to establish a prima facie case by demonstrating that she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Const. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since Agency officials have articulated legitimate and nondiscriminatory reasons for their actions. See U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983). As to incident (1), management officials denied that Complainant was denied the opportunity for advancement. When Complainant raised her concerns about unfairness in assignments, S2 contacted the Beaumont supervisor to look into her concerns. The Beaumont supervisor emphasized to S2 that he treated everyone fairly. Email correspondence indicates that S2 met with the supervisor to further understand the rotational assignments. S2 then met with Complainant and the supervisor to resolve the matter and both appeared satisfied and willing to improve their professional relationship following the meeting. Furthermore, Complainant noted that she was later assigned to the Cargill location and did not work with the supervisor again. Concerning incidents (2) and (3), both S2 and S3 reiterated that intermittent employees like Complainant were utilized whenever they were needed and did not have fixed schedules. With respect to incident (4), S2 and S3 asserted that they did not have knowledge of the situation involving Complainant. The record reveals, however, that a co-worker reported that Complainant harassed her, cursed at her, and treated her with disrespect. Regarding incident (5), S2 and S3 stated that all the supervisors had reached a consensus that Complainant’s performance as an intermittent employee was not benefiting the Agency’s operations. To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Hon. Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). Pretext can be demonstrated by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the Agency's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence. Opare-Addo v. U.S. Postal Serv., EEOC Appeal No. 0120060802 (Nov. 20, 2007), req. for recon. den. EEOC Request No. 0520080211 (May 30, 2008). When asked by the EEO investigator why she believed that her race, color, sex, and prior EEO activity were factors in these incidents, Complainant replied that black females were underrepresented in her field, that she was not put on a weekend schedule because of her complaint against the Beaumont supervisor, that her hours were cut immediately after the most recent incident involving alleged threats by her two coworkers, that one of the coworkers was from a culture that did not support women in the workplace, and that S3 did not seem to embrace African-Americans. IR 56, 59, 61-63, 66. 2020001071 8 Apart from these assertions, Complainant has presented neither affidavits, declarations, or unsworn statements from witnesses other than herself nor documents that contradict or undercut the explanations provided by S2 and S3, that cause us to question the veracity of S2 and S3 as witnesses, or which otherwise tend to show that any management official harbored unlawful motives in connection with the incidents described in the above-referenced complaint. We therefore find that the evidentiary record does not support Complainant’s claim of disparate treatment in violation of Title VII. Hostile Work Environment To the extent that Complainant is alleging that she was subjected to a hostile work environment, we find that under the standards set forth in Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) that Complainant's claim of a hostile work environment must fail. See Enforcement Guidance on Harris v. Forklift Systems, Inc., EEOC Notice No. 915.002 (Mar. 8, 1994). A finding of a hostile work environment is precluded by our determination that Complainant failed to establish that any of the actions taken by the Agency were motivated by discriminatory or retaliatory animus. See Oakley v. U.S. Postal Serv., EEOC Appeal No. 01982923 (Sept. 21, 2000). CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final decision. 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). 2020001071 9 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 (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. 2020001071 10 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
