[Redacted], Haywood C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Sep 27, 2021

Appeal Nos. 0120151060, 0120162441 (E.E.O.C. Sep. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Haywood C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal Nos. 0120151060, 0120162441 Hearing Nos. 410-2013-00011X, 410-2014-00385X Agency Nos. 4K-300-0150-11, 1K-301-0061-12, and 4H-300-0059-11 DECISION Complainant filed two appeals,2 pursuant to 29 C.F.R. § 1614.403(a), from Agency’s final decisions concerning his equal employment opportunity (EEO) complaints 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 decisions. ISSUE PRESENTED The issue presented is whether the Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ) abused his discretion when he dismissed Complainant's hearing request as a sanction pursuant to 29 C.F.R. § 1614.109(f)(3). 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. 2 In the interest of economy, the Commission exercises its discretion to consolidate Complainant’s appeals. See 29 C.F.R. § 1614.606. 0120151060 & 0120162441 2 BACKGROUND During the relevant timeframe, Complainant was employed, first as a Parcel Post Distribution Clerk, then as a Bulk Mail Technician, at the Atlanta Processing and Distribution Center (P&DC) in Atlanta, Georgia. Complainant filed three formal EEO complaints on January 7, 2011, October 11, 2012, and October 27, 2012, respectively. With respect to the complaint filed on January 7, 2011 (Agency No. 4H-300-059-11), Complainant alleged that the Agency subjected him to sexual harassment discrimination on the basis of sex (male or perceived sexual orientation)3 when, on or around November 24, 2010, his co-workers made comments regarding his sexual preference, including that he was gay and frequented gay clubs and bars. The Agency thereafter issued a final decision, dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim of harassment. In EEOC Request No. 0520110680 (May 20, 2013), the Commission reversed the Agency’s final decision and ordered the Agency to process Complainant’s complaint (Agency No. 4H-300-059-11) in accordance with 29 C.F.R. § 1614.108. Meanwhile, on October 11, 2012, Complainant filed the second EEO complaint, as amended, (Agency No. 1K-301-0061-12). Therein, Complainant alleged discrimination based on sex (male or perceived sexual orientation) and retaliation (prior EEO activity), in that he was subjected to a hostile work environment as follows: 1. on an unspecified date in January 2013, a co-worker confronted him in a threatening/offensive manner regarding the rotation, which he reported to management, but never received a response; 2. in February 2013, his reporting time was changed, and he never received a response to his request for a change of schedule; 3. on an ongoing basis, including June 12, 2013, he was not rotated on the Automated Parcel Bundle Sorter (APBS) machine with his co-workers; 4. on an unspecified date, he became aware that from April 2007 until January 2011, he was not properly reimbursed for travel; 3 In Bostock v. Clayton Cty., the Supreme Court held that discrimination based on sexual orientation or transgender status is prohibited under Title VII. 590 U.S. ___, 140 S. Ct. 1731 (2020); see also Baldwin v. Dep’t of Transp., EEOC Appeal No. 0120133080 (July 15, 2015) (an allegation of discrimination based on sexual orientation states a claim of sex discrimination under Title VII because sexual orientation is inherently a sex-based consideration). 0120151060 & 0120162441 3 5. on June 5, 25, and 27, 2012, and October 3 and 4, 2012, and possibly continuing, his co- workers engaged in negative comments and innuendos that he was gay, and management took no action to stop the comments or behavior; and 6. on June 27, 2012, his supervisor made the comment that “some folks should not watch other folks get undressed.” The Agency accepted the complaint and conducted an investigation. In EEOC Appeal No. 0120132452 (Nov. 18, 2014), we remanded Agency No. 1K-301-0061-12 for consolidation with Agency No. 4H-300-059-11 and ordered the Agency to perform a supplemental investigation. After the supplemental investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ. Complainant requested a hearing, but the AJ dismissed the hearing request as a sanction. In dismissing Complainant’s hearing request, the AJ noted that the Agency filed a motion to compel discovery on December 16, 2015, asserting that Complainant failed to respond to its interrogatories and requests for documents. The AJ also noted that on March 4, 2016, the Agency filed a motion for sanctions because Complainant’s responses to its interrogatories were inadequate. The AJ noted that the Agency renewed its motion for sanctions on May 11, 2016 and found that Complainant’s responses to the Agency’s interrogatories were evasive and inadequate. In so finding, the AJ noted that Complainant only responded that the witnesses to the harassment consisted of “any and all coworkers in the work area, pay location and shift that [he] was working at the time of this harassment.” The AJ found that Complainant should have identified all of his former coworkers by name, as he claimed that each and every one of them witnessed the harassment. The AJ found that Complainant did not describe his allegations of retaliation with specificity during the investigation and he did not shed any additional light on his claims of harassment in his discovery responses. The AJ therefore found that Complainant did not make a good faith effort in responding to the Agency’s interrogatory requests. The AJ remanded the complaints (Agency Nos. 1K-301-0061-12 and 4H-300-059-11) to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). Therein, the Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. The Commission thereafter docketed Complainant’s appeal as the instant identified EEOC Appeal No 0120162441. In the interim, on October 27, 2011, Complainant filed the third EEO complaint (Agency No. 4K-300-0150-11) again alleging that the Agency subjected him to a hostile work environment on the basis of sex (male or perceived sexual orientation) when: 1. On September 8, 2011, he heard coworkers say, “he does not want anyone to know he is a faggot”; and “he is trying to fool the new guys.”; 2. On September 12, 2011, he heard coworkers discussing with customers the idea that he was gay and did not want anyone to know; and 0120151060 & 0120162441 4 3. On October 4, 2011, he heard a customer say, “Watch out for that faggot.” Following the investigation, 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, but the AJ denied the hearing request on the grounds that Complainant failed to respond to discovery, e- mail, the Agency’s Motion to Compel, and failed to provide a Pre-hearing Conference Report. 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 Agency also concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant subsequently appealed, and the Commission docketed Complainant’s appeal as the instant identified EEOC Appeal No 0120151060. CONTENTIONS ON APPEAL On appeal, with respect to Appeal No. 0120162441, Complainant asserts, inter alia, that the AJ improperly dismissed his request for a hearing. Complainant believes that he adequately answered the Agency’s interrogatories and maintains he was denied due process when his hearing request was dismissed. Complainant attaches three of his previous responses to the Agency’s interrogatories to his statement of appeal. ANALYSIS AND FINDINGS AJ’s Dismissal of Complainant’s Hearing Request (Appeal No. 0120162441) An EEOC AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. §l§614.109(f)(3). Such sanctions may include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party, or other actions, as appropriate. Id. However, such sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing his/her discretion to impose a harsher sanction. Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). In the instant case, we are not persuaded that Complainant's actions warranted the sanction imposed by the AJ. A review of the record reflects that Complainant, who was not represented by legal counsel, attempted to respond to the Agency's requests and provided those responses by the deadlines imposed. The record reflects that Complainant was frequently in communication with the Agency and the AJ regarding the interrogatories and tried to provide information as requested. Complainant did not ignore the Agency's discovery requests and was responsive to them. 0120151060 & 0120162441 5 As such, we are not persuaded that Complainant affirmatively failed to cooperate with the discovery process and the AJ's orders. In addition, we note that there were multiple investigative reports and we find that there was sufficient information in the investigative reports for the parties to proceed to the hearing on whether Complainant was subjected to discrimination and harassment as alleged in his complaints. In so finding, we note that Complainant repeatedly specifically named his management officials and his coworkers in the investigative reports whom he asserts witnessed and subjected him to a hostile work environment based on reprisal and his sex. Accordingly, we determine that the dismissal of the hearing by the AJ is not supported by the record. See Cauldwell v. Fed. Deposit Ins. Corp., EEOC Appeal No. 0120122818 (Feb. 19, 2013) (in finding that the AJ improperly dismissed complainant’s hearing request, we noted that complainant, who was not represented by counsel, repeatedly attempted to respond to the Agency’s discovery requests, and there was nevertheless sufficient information in the investigative report for the parties to proceed to the hearing); Abulsaad v. Dep’t of Navy, EEOC Appeal No. 0120102379 (Mar. 26, 2012) (vacating the AJ’s dismissal of complainant’s hearing request, finding that complainant, who was not represented by counsel, did not ignore the Agency’s discovery requests, and complainant's reference to the report of investigation, which contained extensive information and documentation on his claims, was sufficiently responsive to the Agency’s interrogatories). Appeal No. 0120151060 Upon review of the record, we find that the matter set forth in Agency No. 4K-300-0150-11 is a continuation and part of Complainant’s overall claim of harassment and interrelated with Agency Nos. 4H-300-0059-11 and 1K-301-0061-12 (Appeal No. 012016441). To avoid inconsistent decisions and fragmentation of Complainant's ongoing harassment claim, we vacate the Agency’s final order, order the Agency to consolidate the complaints, and remand them to the Hearings Unit for a hearing. CONCLUSION For the reasons set forth above, we VACATE the Agency's final decisions and REMAND the complaints for further processing in accordance with the following Order. ORDER The Agency is directed to submit a copy of the complaint files to the EEOC Washington Field Office Hearings Unit within thirty (30) calendar days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint files have been transmitted to the Hearings Unit and that the assigned Administrative Judge has been notified of the Commission's determination to consolidate Agency Nos. 4H-300-0059-11 and 1K-301-0061-12 with Agency No. 4K-300-0150-11. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaints 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. 0120151060 & 0120162441 6 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. 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. 0120151060 & 0120162441 7 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. 0120151060 & 0120162441 8 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’s signature Carlton M. Hadden, Director Office of Federal Operations September 27, 2021 Date