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

Equal Employment Opportunity Commission

Jun 17, 2021

Appeal No. 2019004015 (E.E.O.C. Jun. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michal J.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Appeal No. 2019004015 Hearing No. 520-2017-00600X Agency No. NY-16-0873-SSA DECISION JURISDICTION On June 8, 2019, 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 May 10, 2019, final order 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. For the following reasons, the Commission REVERSES the Agency’s final order. ISSUE PRESENTED The issue presented is whether the EEOC Administrative Judge (AJ) erred when dismissing Complainant’s hearing request as a sanction for repeated noncompliance with discovery orders. 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 2019004015 BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Claims Specialist Trainee, GS-7, at the Agency’s Laconia Field Office in Bronx, New York. Complainant contacted an EEO Counselor on August 23, 2016, and filed a formal EEO complaint on November 28, 2016, alleging that the Agency discriminated against him (and subjected him to non-sexual harassment) on the bases of national origin (Puerto Rican and Dominican) and sex (male) beginning February 29, 2015, with regard to training, performance evaluations, time and attendance; and when Complainant was terminated from his position of Claims Specialist on September 1, 2016. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. On November 15, 2018, the parties appeared before the AJ in person for a Pre-Hearing Conference in accordance with the Case Acknowledgment and Notice of Pre-Hearing Conference (Notice) issued on September 25, 2018; and the Amended Case Acknowledgment and Notice of Pre- Hearing Conference issued on November 5, 2018. The Notice outlined how the parties were to prepare for the conference, the purpose of which was to review the investigative record to date and to prepare the parties for any further development and disposition of the EEO complaint. The Notice included a warning that failure to follow the Order or any other orders of the AJ may result in sanctions, up to and including dismissal of the complaint. On February 6, 2019, the AJ issued a Post-Conference Order which set forth the claims to be adjudicated, a discovery schedule, and a summary judgment motion schedule.2 The parties were ordered to serve their discovery demands, including damages, within ten calendar days of the Post- Conference Order (February 16, 2019). The parties were also ordered to file their response(s) to the discovery demands within ten calendar days of receipt of the demand(s) (February 26, 2019, at the latest). The parties were to participate in a discovery status conference with the AJ by telephone on March 6, 2019. On February 13, 2019, Agency Counsel contacted the AJ by email with a copy (cc) to Complainant, asking for clarification as to whether discovery would include discovery on damages. The AJ responded that discovery would include damages. On February 15, 2019, Complainant emailed Agency Counsel, with cc to the AJ, stating that he had received the Agency's discovery demands and that he would only have nine days in which to respond. Complainant requested an additional 30 to 45 days to respond. Agency Counsel responded, with a cc to the AJ, that he did not have the flexibility with the deadlines in the case to agree to Complainant’s request for an additional 30 to 45 days in which to respond. Agency Counsel referred Complainant to the AJ’s February 6, 2019, Order, stating that he was agreeable to receiving the responses within 10 days of February 15, 2019. 2 The AJ indicated that the issuance of the Post-Conference Order was delayed by the partial government shutdown, stating that the Commission was closed during that time. 3 2019004015 On February 18, 2019, after the deadline to serve discovery demands had passed, Complainant emailed to the AJ, with a cc to Agency Counsel, a list of document demands from the Agency. Agency Counsel objected to Complainant's discovery demands as being untimely and beyond the scope relevant to the case. The AJ asked the parties to provide her with a date and time when they were both available, so the AJ could schedule a conference call to discuss the apparent discovery disputes. The AJ reminded the parties that their discovery requests were to be relevant to the claims and that the AJ would not permit discovery requests that were overly broad or not directly relevant to Complainant's claims. Complainant emailed back that he was available "mostly after 5pm on most days and all day on Sundays with prior notice" and provided four days on which he was available, only one of which was during regular work hours. Agency Counsel indicated that he was available on various days between 4:15-5:00 p.m. and at 5:30 p.m. on one other date. In preparation for the call, which was scheduled for February 28, 2019, Agency Counsel emailed the AJ, with a cc to Complainant, the discovery requests that were originally served on Complainant on February 14, 2019. After the call, the AJ issued a Case Management Order, which gave Complainant until March 7, 2019, to respond to the Agency's discovery demands. The AJ also ordered Complainant to provide the Agency with the communications between Complainant and the EEO Investigator in which Complainant asserted that he provided the EEO Investigator with documents/information that were not already included in the ROI as well as any such documents and information actually provided to the EEO Counselor as part of the communications. The AJ also ruled that Complainant's discovery demands were generally overbroad and required the Agency to only respond to specified demands. The parties were again notified that failure to comply with this Order may result in sanctions up to dismissal of the complaint or default judgment. On February 28, 2019, Complainant emailed the AJ with a cc to Agency Counsel, requesting additional document demands from the Agency. Complainant indicated that he had proof that he sent the EEO Investigator his rebuttals along with the names of the correct individuals. The AJ noted that the attached “proof” was just fax cover sheets. The AJ denied Complainant's request and notified the parties that she would not accept any further motions or quasi-motions. The Agency complied with the AJ’s order, providing an encrypted zip file of the discovery ordered to Complainant on March 6, 2019. The AJ noted that Agency Counsel attempted to assist Complainant in opening the zip file and offered to mail the files as well as make them available for pick up. Agency Counsel also re-sent the documents to Complainant in portable document format (pdf). Complainant indicated that he was going to send Agency Counsel "a series of documents," apologizing in advance for the volume. On March 8, 2019, Complainant emailed the AJ, with a cc to Agency Counsel, stating that he had "fulfilled the discovery production request by emailing Agency Counsel 55 discovery production emails containing all requested documentation for Complainant’s EEO case." Complainant stated that he was unable to open the Agency's zip file and had yet to receive the Agency's discovery demands as per the AJ’s order. Complainant sent another email accusing Agency Counsel of "embellishing information and inadequacies." 4 2019004015 The AJ found Complainant’s claim "patently outrageous." From the outset, the AJ noted, Agency Counsel had conducted himself with professionalism and respect both to Complainant and the AJ, particularly in the face of Complainant's willful refusal to follow the AJ’s Orders with respect to the discovery process. The AJ stated that the 55 documents that Complainant emailed to Agency Counsel were not fully responsive to the interrogatories and document requests included in the Agency's well-crafted and clear discovery request. The AJ asserted that Complainant had been warned numerous times that his failure to follow the AJ’s orders may result in the dismissal of his request for a hearing. Therefore, on March 8, 2019, the AJ dismissed Complainant’s request for a hearing. The AJ remanded the complaint to the Agency and ordered the Agency to issue a Final Agency Decision on the complaint within 60 days of the date of the AJ’s Order. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The Agency concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL In his Appeal Letter, Complainant reiterates his allegations, asserting that he had met his burden of proving that his termination was the result of discriminatory animus. Complainant states that, in dismissing his complaint, the AJ demonstrated significant bias while overseeing the preparation for a potential hearing, asserting that out of frustration, the AJ expressed that she was overwhelmed with work due to the government shut down. Complainant states that the Agency’s May 10, 2019, FAD was untimely because it was three days later than the May 7, 2019, date on which it was due to him. Complainant requests that his case be reassigned to an impartial and fair AJ who would see the context of his case and would render a decision within the parameters of the law. Complainant requests that the Commission ask the Agency to assign a new attorney to his case who would work with him to find a common ground, asserting that all he wants is to seek justice for the harms and damages caused to him since 2016. In its Appeal Brief, the Agency reiterates its explanations, stating that Complainant could not establish that the Agency subjected him to non-sexual harassment with regard to training, performance evaluations, and time and attendance; and that Complainant could not establish that he was subjected to disparate treatment when he was terminated for performance deficiencies. The Agency asks that its FAD be affirmed, and Complainant’s appeal dismissed. 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, 5 2019004015 § 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”). ANALYSIS AND FINDINGS The Commission’s regulations afford broad authority for the conduct of hearings by Administrative Judges. 29 C.F.R. § 1614.109 et seq; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), (as revised Aug. 5, 2015); Rountree v. Dep’t of Treasury, EEOC Appeal No. 07A00015 (Jul. 13, 2001). The regulations state that an AJ shall, in appropriate circumstances, take such actions as the AJ deems appropriate when a party “…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 witnesses(es).” 29 C.F.R. §1614.109(f)(3)(i). EEOC Regulation 29 C.F.R. §1614.109(f)(3) specifically sets forth the types of actions an AJ may take when required by the appropriate circumstances. An AJ may: 1) draw an inference that the requested information would have reflected unfavorably to the non-complying party; 2) consider the requested information to be established in favor of the opposing party; 3) exclude other evidence offered by the non-complying party; 4) issue a decision fully or partially in favor of the opposing party; or 5) take other action deemed appropriate. Id. In the present case, however, we find that the AJ erred in not providing Complainant with an opportunity to respond prior to the dismissal of the hearing request. The Commission has previously held that, prior to the imposition of sanctions, the party against whom such sanctions are to be imposed is entitled to an opportunity to respond and show cause why sanctions should not be imposed. Miller v. Dep’t of the Navy, EEOC Appeal No. 01A01735 (Jun. 18, 2004). We do not condone Complainant’s failure to respond to the Agency’s discovery request despite repeated warnings by the AJ. However, the AJ should have followed proper procedures and issued a show cause order prior to ordering any sanctions according to the procedures in EEO MD-110 at Chapter 7. We need not address whether an appropriately tailored sanction was imposed because we have concluded that, in the absence of an order, the AJ erred in prematurely imposing a sanction authorized by 29 C.F.R. §1614.109(f)(3). CONCLUSION Therefore, after a careful review of the record, including Complainant's arguments on appeal, the Agency's response, and arguments and evidence not specifically discussed in this decision, the Commission reverses the Agency's final action and remands the matter to the Agency in accordance with this decision and the Order below. 6 2019004015 ORDER The Agency is directed to submit a copy of the complaint file to the EEOC New York District 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 file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall process 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 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 (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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 7 2019004015 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. In the absence of a legible postmark, 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. 8 2019004015 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 June 17, 2021 Date