U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Santo D.,1 Complainant, v. Chad F. Wolf, Acting Secretary, Department of Homeland Security (Transportation Security Administration), Agency. Request No. 2020002759 Appeal No. 0120181017 Hearing No. 460-2016-00183X Agency No. HS-TSA-24390-2015, HS-TSA-27269-2016 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0120181017 (Feb. 11, 2020). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). For the reasons that follow, the Commission DENIES the Agency’s request for reconsideration for failure to meet the regulatory criteria. 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. 2020002759 2 BACKGROUND On October 26, 2015, Complainant filed an EEO complaint alleging that he was subjected to discrimination based on reprisal for prior protected EEO activity. Complainant timely requested a hearing before an EEOC Administrative Judge (AJ). On October 31, 2017, Complainant’s counsel (Counsel) filed a motion to recuse the AJ assigned to the case from the matter at hand. In support of the motion, Counsel included two voice recordings she had made during prehearing meetings without the consent of the parties who were recorded, including the AJ. When the AJ responded that the exhibits were not in an acceptable format for electronic filing, Counsel provided transcripts that she had created of the recordings. On November 3, 2017, the AJ issued an Order dismissing Counsel as Complainant’s representative and excluding Counsel from the hearing. The AJ found that Counsel engaged in misconduct and unprofessional conduct in making the unauthorized recordings, in filing uncertified transcripts of the recordings as exhibits to a motion, and in sending emails that challenged the AJ’s authority to engage in settlement discussions and emails that directed unprofessional and disrespectful statements towards the AJ. The AJ held a hearing on November 8, 2017, and issued a decision on November 14, 2017, finding no discrimination. Complainant appealed the Agency’s final order fully implementing the AJ’s decision to the Commission. On appeal, the Commission noted that, unless the conduct was so egregious that it compromised the order required for a fair and orderly proceeding, the AJ should normally warn the offending person to stop the conduct and that, if the improper conduct continued, that person would be excluded from the hearing. The Commission found that the AJ failed to provide Counsel with such notice before excluding Counsel from the hearing. The Commission therefore determined that the AJ erred in excluding Counsel from the hearing, vacated the Agency’s final order and the AJ’s decision, and remanded the complaint for a new hearing. Santo D. v. Dep’t of Homeland Sec., EEOC Appeal No. 0120181017 (Feb. 11, 2020). The Agency subsequently filed the instant request for reconsideration. CONTENTIONS ON REQUEST FOR RECONSIDERATION On request for reconsideration, the Agency contends that the Commission failed to consider all of the instances in which Counsel was placed on notice that sanctions could be imposed for violating an AJ’s order or for contumacious conduct. According to the Agency, the September 16, 2016, Order of Acknowledgment and Case Management, the April 20, 2017, Order granting Complainant’s Second Motion to Amend, and the October 26, 2017, Order on Agency’s Motion for Decision Without a Hearing and Pre-Hearing Conference Order all notified Counsel about sanctions and specified situations under which sanctions could be imposed, including for contumacious conduct. 2020002759 3 The Agency also contends that the Commission failed to consider material facts by focusing its decision on Counsel’s decision to make unauthorized recordings without considering Counsel’s emails. According to the Agency, Counsel sent four emails to the AJ beginning on October 30, 2017, that exhibited a pattern of disrespectful misconduct. The Agency characterizes Counsel’s emails as contumacious conduct that warranted a sanction. Additionally, the Agency contends that the Commission’s appellate decision involves a clearly erroneous interpretation of law. According to the Agency, it was not an abuse of discretion for the AJ to issue sanctions without issuing a show cause order first because Counsel’s misconduct was so egregious. The Agency also argues that, even if the AJ erred in excluding Counsel from the hearing, Complainant did not establish that he was harmed by the AJ’s error. Finally, the Agency generally contends that remanding the case for another hearing will have a substantial impact on Agency operations because the Agency will incur undue costs and expenses at a new hearing and because remanding will create an incentive for representatives to engage in misconduct. Complainant did not submit a statement in response to the Agency’s request for reconsideration. ANALYSIS AND FINDINGS EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c) and denies the request for reconsideration of the decision in Appeal No. 0120181017. The Agency argues that the Commission failed to consider that Counsel was on notice throughout the hearing process that sanctions could be imposed. The Agency also argues that the Commission misconstrued EEO MD-110 as it relates to exclusion as a sanction. However, as stated in the Commission’s decision, unless the conduct is so egregious as to compromise the order required for a fair and orderly proceeding, the Administrative Judge normally should first warn the offending person to stop the conduct. EEO MD-110 at Chap. 7, § V.A.5; William G. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120162273 (Sep. 26, 2018). In this case, the record shows that the AJ did not issue such a warning. Further, although the Agency contends that the Commission’s appellate decision failed to consider Counsel’s emails in finding that the AJ abused her discretion in excluding Counsel from the hearing, the appellate decision stated that the AJ excluded Counsel from the hearing based on the unauthorized recording and based on her unprofessional emails to the AJ. 2020002759 4 Moreover, on request for reconsideration the Agency has not identified any instance where the AJ notified Counsel that she would be excluded from the hearing if her conduct continued. Finally, the Agency has not demonstrated that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120181017 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order as set forth below. ORDER The Agency shall submit to the Hearings Unit of the EEOC Houston District Office the request for a hearing within thirty (30) calendar days of the date this decision is issued. The Agency shall provide the complete complaint file, and a copy of this decision with the request. Thereafter, the case should be assigned to an Administrative Judge. The Administrative Judge shall hold a new hearing and issue a decision on Complainant’s complaint in accordance with 29 C.F.R. § 1614.109. The Agency then shall issue a final action in accordance with 29 C.F.R. § 1614.110. 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. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.†29 C.F.R. §§ 1614.407 and 1614.408. 2020002759 5 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. 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. 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 December 17, 2020 Date
