[Redacted], Horace A., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jul 8, 2021

Appeal No. 2019000742 (E.E.O.C. Jul. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Horace A.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019000742 Hearing No. 531-2007-00275X Agency Nos. HQ-07-0199-SSA; HQ-07-0370-SSA DECISION In conjunction with its October 24, 2018 final order, the Agency filed an appeal of an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge’s decision awarding Complainant attorney’s fees as a sanction, but finding that it had not engaged in 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 MODIFIES the Agency’s final order. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Human Resources Specialist, GS-12, on the Work/Life Team in the Center for Employee Services, Office of Personnel, Deputy Commissioner for Human Resources in Baltimore, Maryland. Complainant filed two EEO complaints with several amendments alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), age (42), and in reprisal for prior 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. 2019000742 2 1. On December 22, 2006, the Agency did not select Complainant for the Human Resources Specialist position, GS-13, under Vacancy Announcement No. A-1087 (HQ-07-0199-SSA); 2. Complainant was harassed with respect to his assignments; 3. On March 26, 2007, during a meeting with the Deputy Director, the Agency issued Complainant a leave counseling memorandum and the Deputy Director stated that Complainant’s employment could be terminated if he continues to file EEO complaints; 4. Complainant was placed on a Performance Assistance Plan (PAP) and an Opportunity to Perform Successfully (OPS) and accompanying actions took place; 5. Complainant was excluded from meetings and training opportunities in 2007; 6. The Agency denied Complainant’s request to have his representative attend his mid-year performance meeting on February 27, 2007; 7. Management denied Complainant’s request for a detail to the Office of Facilities Management (OFM); 8. Management did not accept Complainant’s April 16, 2017, medical documentation to support his request for 112 hours of sick leave; 9. Complainant was not recognized or given an award on May 14, 2007 for his involvement in the Healthier Feds campaign; 10. On May 21, 2007, Complainant received a “Summary of Performance Discussions” which Complainant alleges is full of discrepancies, errors, lies, and unethical behavior by management and a copy was placed in Complainant’s SF- 7B extension file; 11. On June 8, 2007, Complainant was abruptly ordered into a conference room for a meeting with management, his request for representation during the meeting was denied, and he was not given time to prepare, bring any papers or notes to defend or support himself; and 12. On June 20, 2007, Complainant was called to a meeting and accused of not being at his desk for an extended period of time on June 19, 2007, and a counseling session document was placed in his SF-7B extension file. 2019000742 3 Complainant requested a hearing before an EEOC Administrative Judge (AJ) after the Agency failed to complete its investigation within 180 days. On December 11, 2007, the AJ assigned to the matter ordered the Agency to complete its investigation by February 11, 2008. On February 14, 2008, the AJ issued a Show Cause Order for the Agency to explain why it had not completed the investigation. In addition, Complainant filed a Motion for Sanctions to which the Agency did not respond. Ultimately, the Agency did not complete its investigation until March 5, 2008. On April 1, 2008, the AJ granted Complainant’s unopposed Motion for Sanctions against the Agency for failing to comply with her order to timely complete the investigation. As sanctions, the AJ ordered the Agency to take six enumerated actions to complete the investigation and awarded attorney’s fees to Complainant for: (1) preparing the Motion for Sanctions; (2) preparing an investigation plan to assist with the completion of the investigation; (3) two hours of time to number and tab the voluminous Report of Investigation because the Agency failed to do so; and (4) for depositions. The AJ directed Complainant to submit an attorney’s fees petition at the end of the discovery period. On January 14, 2010, the Agency submitted a Motion for Summary Judgment, which Complainant opposed. On May 23, 20182, the AJ granted the motion and issued a decision finding that Complainant had not been subjected to discrimination as alleged. The AJ directed Complainant to submit a fee petition for attorney’s fees previously awarded as a sanction. In a decision on September 18, 2018, the AJ granted Complainant’s request for attorney’s fees. The AJ noted that the Agency had corrected its previous error and tabbed and indexed the Report of Investigation for Complainant. Therefore, the AJ did not allow Complainant two hours of time as previously ordered. In opposing the petition for attorney’s fees, the Agency simply argued that the AJ did not have authority to award attorney’s fees as a sanction. The AJ rejected the Agency’s argument and granted Complainant’s request for $10,829.00 in attorneys’ fees. The Agency subsequently issued a final order fully adopting the AJ’s finding that Complainant failed to show that the Agency subjected him to discrimination as alleged. However, the Agency rejected, without explanation or citation, the AJ’s award of attorney’s fees. CONTENTIONS ON APPEAL As noted above, the Agency did not submit any arguments or contentions in support of its appeal. In response, Complainant argues that the Agency has not contested the amount of attorney’s fees requested, only the Commission’s authority to issue sanctions. 2 There is no indication in the record before us explaining the extraordinary gap in time between the Agency’s motion and the AJ’s decision granting the motion. Nonetheless, neither party has raised any arguments regarding this matter. 2019000742 4 Thus, Complainant contends that he is entitled to the full amount of the attorney’s fees awarded. Complainant does not appeal the AJ’s finding of no discrimination. ANALYSIS AND FINDINGS The Commission notes at the outset that neither party has challenged the AJ’s summary judgment decision finding that Complainant failed to demonstrate that he was subjected to discrimination or reprisal. Upon careful review of the record, the Commission finds no basis to disturb the AJ's summary judgment decision finding that Complainant was not subjected to discrimination or reprisal as alleged. Accordingly, the Commission AFFIRMS the final order on that matter. The only issue before us is whether the AJ properly awarded attorney’s fees as a sanction against the Agency. Violation of EEOC Regulation 29 CF.R. § 1614.108(e) EEOC regulation 29 CF.R. § 1614.108(e) provides that the Agency shall complete its investigation within 180 days of the date of the filing of an individual complaint. The procedures contained in the Commission's regulations are no more or no less than the necessary means to eliminate unlawful employment discrimination in Federal employment. Mach v. Dep't of Def., EEOC Appeal No. 0120080658 (Nov. 30, 2010). Here, Complainant filed his initial EEO complaint on February 9, 2007, with additional amendments and a second EEO complaint occurring between April 2007 through June 20, 2007. Complainant subsequently requested a hearing after the Agency failed to complete the investigation within the requisite 180 days. The AJ assigned to the matter ordered the Agency to complete its investigation by February 11, 2008, but the Agency did not do so until March 5, 2008. The Agency provided no explanation for its failure to timely complete the investigation as required under Commission regulations. As such, the Commission finds that the AJ properly found the Agency to have violated 29 C.F.R. § 1614.108(e). Imposition of Sanctions for Violation of 29 C.F.R. § 1614.108(e) Now we must determine whether the AJ abused her discretion in awarding Complainant attorney’s fees for the Agency’s violation of EEOC regulation 29 C.F.R. § 1614.108(e). 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 or her orders. 29 C.F.R. § 1614.109(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. 2019000742 5 While a party charging an AJ with abuse of authority to sanction faces a very high bar, that authority is not without limits. Chere, supra. Sanctions can be used to both deter the non- complying party from similar conduct in the future and to equitably remedy the opposing party. Robert A. v. U.S. Postal Serv., EEOC Appeal No. 0120182698 (Feb. 21, 2020). To achieve a proper balance between these considerations, it is necessary to apply the least severe sanction needed to respond to the party’s failure to show good cause for its actions. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120101994 (Jan. 14, 2014). In other words, sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. Chere, supra. 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. Regarding the first factor, as discussed above the AJ assigned to the matter ordered the Agency to complete its investigation by February 11, 2008, but the Agency did not do so until March 5, 2008. The Agency has provided no explanation or justification for its delay. As to the second and third factors, we note that the delay in completing the investigation resulted in Complainant’s attorney expending time and resources in the preparation of an investigative plan to complete the investigation along with depositions to include in the record. Aside from these efforts, there is no other evidence demonstrating that Complainant was significantly prejudiced or otherwise suffered substantial consequences as a result of the Agency’s slight delay in completing the investigation. Further, regarding the fourth factor, there is no evidence of any other noncompliance by the Agency. Finally, as to the fifth factor, while the Agency’s delay in completing the investigation clearly violated the Commission’s regulations, the Commission finds no evidence that the delay severely compromised the integrity of the EEO process. Taking these factors into consideration, we find that the sanction of an award of $10,829.00 in attorney’s fees was too harsh and not narrowly tailored to address the conduct at issue. The Agency’s delay in completing an inadequate investigation is concerning but does not warrant an award of prospective attorney’s fees. The Agency’s actions did not substantially prejudice Complainant because he was still able to fully engage the discovery tools afforded him during the hearing process and see it to conclusion. The AJ could have chosen from among several less severe sanctions. Under the circumstances present, we think that the posting of a notice, as detailed below, and training of the Agency’s EEO staff is adequate remedy at this time for the Agency’s conduct. Our decision to sanction the Agency in this matter will effectively emphasize to the Agency the need to comply with Commission regulations and orders in a timely manner. 2019000742 6 CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we MODIFY the Agency’s decision and remand the matter for further action in accordance with the Order below. ORDER The Agency is ordered to complete the following remedial actions: 1. The Agency shall post a notice in accordance with the paragraph below. 2. Within 90 days of the date this decision is issued, the Agency shall provide two hours of in-person or interactive training to its EEO management officials in the Office of Civil Rights and Equal Opportunity regarding their responsibilities concerning case processing under 29 C.F.R. Part 1614. The Agency shall submit a report of compliance in digital format as provided in the statement entitled “Implementation of the Commission's Decision.” The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's action. POSTING ORDER (G0617) The Agency is ordered to post at its Office of Civil Rights and Equal Opportunity facility located in Baltimore, Maryland copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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). 2019000742 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 CFR § 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. 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 2019000742 8 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2019000742 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 July 8, 2021 Date