[Redacted], Melinda S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jun 16, 2021

Appeal No. 2019005174 (E.E.O.C. Jun. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melinda S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019005174 Hearing No. 410-2016-00350X Agency No. 4G-320-0173-15 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 June 2, 2020 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. For the following reasons, the Commission VACATES the Agency’s final decision and REMANDS the matter for a hearing. BACKGROUND Complainant worked as a Bulk Mail Clerk, PS-07/O, at the Agency’s Post Office in Savannah, Georgia. On December 18, 2015, Complainant filed a formal EEO complaint in which she alleged that the Agency discriminated against her on the basis of disability (Chemical/Fragrance sensitivity) when, on September 16, 2015, and continuing, she was not accommodated per her medical restrictions. She identified the Customer Services Supervisor and the Officer-In-Charge as the responsible management officials. 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. 2019005174 2 At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). On September 19, 2016, the Supervisory AJ (SAJ) assigned to intake issued an order entitled, “Order on Initial Conference, Deadlines, and Record Completion (OIC).” This order directed the parties to submit their proposed witness and exhibit lists by January 17, 2017. The Agency complied with the SAJ’s OIC. Complainant, meanwhile, failed to submit the requested documentation by the assigned deadline. The case was eventually assigned to an AJ. On March 27, 2019, the AJ issued an order to show cause, directing Complainant to inform him in writing why her hearing request should not be dismissed for failure to comply with the SAJ’s September 19, 2016 OIC. Complainant responded by email the following day. Her response was as follows: Hey Judge [AJ]. I was not my intention to overlook to ignore the email I was I was staying in nose with brain cancer last year and I’m not back up at 2 par yet I did I saw Your email just now and time to respond I’m talkin so funny because I’m talkin by what does Phone can’t stop typing so I’m speaking phone I just now sponding to it what’s your next step .[Complainant] Almighty and Almighty On April 15, 2019, the AJ issued an order dismissing Complainant’s hearing request for failure to submit her hearing witness and exhibits list by January 17, 2017, per the order of the SAJ. The AJ stated that Complainant’s non-compliance warranted a severe sanction, and that even though she has suffered “unfortunate life events” during the preceding year, she had not shown that her incapacitation coincided with her noncompliance with the SAJ’s order. The AJ remanded the matter to the Agency for a final agency decision. The Agency subsequently issued a final decision finding that Complainant was not subjected to discrimination as alleged. CONTENTIONS ON APPEAL In her appeal statement dated July 3, 2019, Complainant argued: [Complainant] is responding as timely and adequately a response in writing to reference to my request for hearing not to be dismissed for failure to comply with administrative judge’s order, resulting in the issuance of a final agency decision on the merits of my claim. Due to my health status over the past year, it isn’t with intent for missing the deadline, or not following the court’s orders or rules. For reasons of having been diagnosed with Brain cancer and going through chemo and radiation, I missed said dates and am currently in not any condition to handle this case at this present moment. 2019005174 3 ANALYSIS AND FINDINGS 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. 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. 2019005174 4 Applying the first factor, the non-compliance consisted of Complainant’s failure to respond to the SAJ’s OIC directing her to produce a list of documents and witnesses by January 17, 2017. Complainant’s justification was that she claimed to be incapacitated at the time, as indicated by her email to the AJ dated March 28, 2019, in which she was apparently attempting to inform the AJ that she had been experiencing complications from brain cancer. Reviewing the second and third factors, it does not appear that Complainant’s noncompliance with the OIC was the reason for the two-year time lag between the deadline for complying with the OIC and the assignment of the case to another AJ for processing. Applying the fourth factor, there appears to be only this single incident of noncompliance as the record does not include any emails or correspondence inquiring about or otherwise following up on the SAJ’s request for Complainant to produce the exhibits and witness lists more than once. 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). 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). 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 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 2019005174 5 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). The AJ held that Complainant’s non-compliance warranted a severe sanction because, even though she has suffered “unfortunate life events” during the preceding year, she had not shown that her incapacitation coincided with her noncompliance with the SAJ’s order. In so ruling, the AJ appears to be operating from the premise that serious health issues do not inherently constitute good cause for failing to meet a filing deadline unless Complainant demonstrates that she is physically unable to either meet that deadline or she requests an extension of time in advance. However, in two recently issued decisions in which the complainant raised illness as a defense to non-compliance, the Commission still required a showing of either contumacious conduct or failure to exercise due diligence on the part of the complainant in order to justify imposing the harshest sanction available. See Cher C. v. Dep’t of the Navy, EEOC Appeal No. 2019002081 (Sept. 21, 2020) (complainant’s assertion that she was ill during early phase of discovery undercut by her failure to provide an affidavit to the investigator after multiple requests, willful and repeated failure to participate in the hearing process, filing false pleadings, withholding evidence, and failing to request extensions of discovery based on her alleged illness); see also Kristie O. v. Dep’t of the Air Force, EEOC Appeal No. 2019002756 (Sept. 23, 2020) (complainant’s assertion that her representative was ill and unable to respond to the AJ’s order undercut by her failure to offer any proof that either she or her representative attempted to inform the AJ of their inability to timely comply with the order). More recently, in Paul F. v. Dep’t of Homeland Sec., EEOC Appeal No. 2019005369 (Feb. 25, 2021), the Commission, in ordering that the matter be remanded for a hearing, rejected the AJ’s reasoning that “[H]ealth issues, family issues, and other personal issues do not inherently constitute good cause for failing to meet a filing deadline, even when such issues are serious in nature [emphasis added].” The complainant in Paul F. had been his mother’s primary caretaker. His mother passed away approximately two weeks prior to the due date for his prehearing statement. The Complainant was clearly in a state of grief at the time. Ultimately, we found that dismissal of the complainant’s hearing request was unjustified because there was no showing that the complainant had engaged in contumacious conduct or had otherwise failed to exercise due diligence. With the foregoing considerations in mind, we find that the content of Complainant’s March 28, 2019 email to the AJ in response to the show cause order reflects Complainant’s attempt to demonstrate that she was and had been suffering from an incapacitating medical condition. Although the Agency argued in its response to Complainant’s appeal that Complainant failed to provide details regarding possible incapacitation or request an extension of time, it presented no evidence that Complainant had engaged in or exhibited the kind of willful or obstinate refusal to comply with an AJ’s orders that typifies contumacious conduct and was clearly present in Charlie K., Cleo S., and Cher C. 2019005174 6 As to due diligence, Complainant responded by email immediately to the AJ’s order to show cause, and the content of her response indicates that she might still have been experiencing medical complications at that time. Moreover, the Agency has not shown that the two-year delay in processing the complaint was attributable to any lack of due diligence on Complainant’s part in responding to the SAJ’s order, unlike the scenarios in Alice S., Robert A., and Kristie O. In light of the Agency’s failure to establish contumacious conduct or lack of due diligence, we find, as we did in Georgianne B., Drucilla Y., and Paul F., that the overall integrity of the EEO process had not been compromised so severely by Complainant's non-response to the OIC 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 she was negligent in failing to respond to the OIC. 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 SAJ’s OIC. 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 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 copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision is received. 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 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. 2019005174 7 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. 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. 2019005174 8 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. 2019005174 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 June 16, 2021 Date