[Redacted], Howard P., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Aug 9, 2021

Appeal No. 2020001623 (E.E.O.C. Aug. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Howard P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020001623 Hearing No. 440-2019-00194X Agency No. 4J-530-0139-18 DECISION On December 10, 2019, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s November 7, 2019 final decision concerning his 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND Complainant worked as a Full-Time City Carrier, 01/B, at the Post Office in Skokie, Illinois. On December 26, 2018, Complainant filed a formal EEO complaint in which he alleged that the Agency discriminated against him on the bases of sex (male) and disability (Asthma) when: 1. Since May 27, 2017, Complainant was denied overtime opportunities; 2. On or around August 14, 2018, Complainant was made to clock out and escorted off the property; 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. 2020001623 2 3. On or around August 24, 2018, Complainant was followed and timed on his route; 4. On or around August 24, 2018, Complainant was told that an accommodation he had been granted to start work at 7:30 a.m. had been revoked; 5. On an unspecified date, management refused Complainant’s request that they call an ambulance for him; and 6. On December 19, 2016, Complainant was issued a notice of removal. At the conclusion of the investigation, the Agency provided Complainant a copy of the investigative report (IR) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing on May 5, 2019. On July 17, 2019, the AJ assigned to the case issued an order scheduling the initial conference for August 13, 2019. In the order, the AJ explicitly warned the parties that failure without good cause to appear and to proceed with any scheduled proceeding would result in the hearing request being dismissed. The initial status conference was held as scheduled, but neither Complainant nor his representative participated telephonically as ordered. The AJ subsequently learned that Complainant had made a request to reschedule the initial status conference on August 8th, due to a previously scheduled medical appointment. Consequently, on August 13th, the AJ rescheduled the initial status conference for August 27, 2019. On August 27th, however, neither Complainant nor his representative participated telephonically at the rescheduled initial status conference. This time, neither Complainant nor his representative notified the Commission or Agency Counsel prior to August 27, 2019, of their inability to participate. They likewise did not request a second extension prior to the rescheduled conference. On August 27, 2019, the AJ issued a show cause order which stated: “Complainant is hereby ordered to show cause (explain) why sanctions should not be imposed for his failure to follow the July 17, 2019 and August 13, 2019, orders of the [AJ] which required him to participate telephonically in the initial status conferences scheduled and held on * * * August 27, 2019 * * * by September 9, 2019.” The order further stated that if Complainant failed to provide legally sufficient reasons to justify his failure to follow the AJ’s orders or otherwise prosecute his case, the imposition of sanctions, including dismissal of the hearing request, might result. On September 8, 2019, Complainant filed his response to the show cause order in which he stated that he was seeking more time because he lost his job and was under a great deal of stress. He also stated that he was unable to represent himself because he was not an attorney. Complainant did not indicate when he expected to be able to proceed with this case, nor did he explain why he and his representative failed to participate in the rescheduled initial status conference on August 27, 2019. 2020001623 3 On October 1, 2019, the AJ issued an order dismissing Complainant’s hearing request, ruling as follows: I find that Complainant’s indefinite inability to represent himself or retain attorney, combined with his failure to provide legally sufficient reasons for his failure to follow the orders of the [AJ] warrants sanctions. Given * * * Complainant’s non-compliance with the [AJ’s] July 17, 2019 order which ordered him to participate telephonically during the initial status conference, and taking into consideration the need to appropriately address Complainant’s behavior, deter similar conduct in the future, and to equitably remedy the harm to the Agency and the integrity of the EEO process, I find that the proper sanction to impose is dismissal of the hearing request, and to remand the case for a final decision on the merits. The Agency subsequently issued its decision finding that Complainant was not subjected to discrimination as alleged. On appeal, Complainant stated: “Unfortunately, I neglected to review my email, the result was failure to appear and dismissal of my hearing. My health at the time was a major concern and [Agency] arbitration was approaching, I was distracted and neglected to check my emails.” 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, (hereinafter “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, 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”). The AJ’s Dismissal of the 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. 2020001623 4 When the a party fails 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, 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. In applying the first factor, we find that Complainant’s noncompliance consisted of twice failing to appear at the initial scheduling conference: the first time on August 13, 2019 and the second time on August 27, 2019. After Complainant missed the first conference, the AJ learned that Complainant had attempted to inform her and Agency Counsel that he had previously scheduled a doctor’s appointment. In response, the AJ rescheduled the initial conference for two weeks later. Despite the AJ’s efforts to accommodate Complainant, he again failed to appear at the telephonic conference and this time provided no explanation or otherwise attempt to justify not showing up. In terms of the second and third factors, Complainant’s failure to participate in the rescheduled telephonic conference did prejudice the Agency to the extent that it hampered the Agency’s progress in processing the complaint and did result in a delay of justice. However, as the parties were at the first stage of the proceeding, it is doubtful that the delay would have been significant. Applying the fourth factor, we find Complainant’s failure to participate in the rescheduled conference was the only instance of noncompliance with the AJ’s order. 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 (Mar. 10, 2020). 2020001623 5 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 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). Absent a showing of contumacious conduct, hearing requests may also 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 unreasonably 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 as a matter of law find that the integrity of the administrative EEO complaints 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). According to the AJ, Complainant admitted in his September 8, 2019 response to her show cause order that he had neglected to check his email correspondence due to the stress he was under from having lost his job. Beyond that, we can find no evidence that Complainant either engaged in contumacious conduct of the type that was present in Charlie K. or Cleo S. or that he failed to exercise due diligence in pursuing his claim as in Alice S. and Robert A. Even if Complainant did fail to exercise due diligence in not appearing at the rescheduled conference, the impact of his conduct upon the integrity of the process was minimal given that this was his only documented instance of noncompliance with the AJ’s order. We note that in her decision dismissing Complainant’s hearing request, the AJ emphasized Complainant’s statement that he needed more time to prepare his case as a pro se litigant and that he had not identified a specific date upon which he would be ready to proceed. 2020001623 6 We find this emphasis to be misplaced in light of Complainant’s minimal noncompliance in not showing up for the rescheduled conference and the fact that the AJ never asked Complainant to provide such a date before she dismissed his hearing request. When Complainant said that he needed additional time, the parties could have settled on a date or at least attempted to negotiate one. In light of the Agency’s failure to establish contumacious conduct or lack of due diligence, we find, as we did in Georgianne B. and Drucilla Y. that the overall integrity of the EEO process had not been compromised so severely by Complainant's failure to participate in the rescheduled initial conference as to warrant imposition of the ultimate sanction - dismissal of Complainant’s hearing request. Rather, the worst that could be said about Complainant is that he was negligent in checking his email correspondence while under stress following loss of his job. We therefore determine that the AJ’s dismissal of Complainant’s hearing request was too harsh a sanction under the specific circumstances presented here. Any one of the lesser sanctions listed in subsections (i), (ii), or (iii) of section 109(f)(3) might be appropriate to address Complainant’s noncompliance with the AJ’s On remand, we advise the AJ to consider imposing a lesser sanction, including those just mentioned, to appropriately address the conduct at issue. Accordingly, we will vacate the Agency’s final decision and remand this matter for a hearing in accordance with our Order below. CONCLUSION Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Commission VACATES the Agency's final decision and REMANDS the matter to the Agency for further processing in accordance with this decision and the Order below. ORDER The Agency is directed to submit a renewed hearing request on behalf of Complainant, as well the complaint file and a copy of this decision, to the EEOC Hearings Unit of the Chicago District Office within fifteen (15) 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 file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint 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. 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 2020001623 7 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. 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. 2020001623 8 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. 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. 2020001623 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 August 9, 2021 Date