[Redacted], Sean L., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.Download PDFEqual Employment Opportunity CommissionOct 26, 2022Appeal No. 2020002537 (E.E.O.C. Oct. 26, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sean L.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Request No. 2021003956 Appeal No. 2020002537 Hearing No. 410-2017-00011X Agency No. 9R1M16031F18 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. 2020002537 (June 2, 2021). 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 Agency’s request is DENIED. BACKGROUND Complainant worked for the Agency as a WS-8801-10 Aircraft Overhaul Supervisor in the Resource Flight, 562nd Squadron at Robins Air Force Base, Georgia. 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. 2021003956 2 On April 16, 2016, Complainant filed an EEO complaint alleging discrimination based on race (Black), color (Black), and age (over 40) when, on November 30, 2015, he became aware that he was not selected for the WS-8801-11 Aircraft Overhaul Supervisor position advertised under vacancy announcement number 9R-ROBINS-1509747-489698-TJ. After the investigation, Complainant timely requested a hearing before an EEOC Administrative Judge (AJ). On February 2, 2017, the AJ issued an order that notified the parties that the deadline to submit a list of hearing witnesses and exhibits was April 26, 2017. The Agency submitted a list of hearing witnesses and exhibits on April 20, 2017, and Complainant did not submit a list by April 26, 2017. On April 2, 2018, the complaint was reassigned to a new AJ. The new AJ asked the parties to submit a joint statement advising the AJ of any pending matters. On April 10, 2018, the Agency submitted a case update stating that the Agency had been unable to reach Complainant and that Complainant had not submitted a list of hearing witnesses and exhibits. On May 30, 2018, the AJ issued an Order to Show Cause to Complainant. The AJ ordered Complainant to explain, in writing, no later than June 14, 2018, why his hearing request should not be dismissed for his failure to comply with the February 2, 2017, order when he failed to submit a list of hearing witnesses and exhibits by the April 26, 2017, deadline. On May 31, 2018, Complainant submitted a response to the Order to Show Cause and attached his hearing witness list. Complainant stated his hearing request should not be dismissed because the investigation was not complete, Complainant had not abandoned his case, Complainant’s representative was “no longer functioning at 100% for medical reasons: Attention deficit hyperactive disorder, Diabetes, and Depression,” and “Agency back logged cases extended cases further out than normal.” Complainant’s witness list included the names of eight witnesses, five of whom were also listed in the Agency’s April 20, 2017, witness list. On June 22, 2018, the AJ issued an Order of Dismissal, finding that Complainant’s noncompliance warranted a severe sanction because he failed to timely submit his list of hearing witnesses and exhibits as required by the AJ’s order and because he failed to articulate a compelling justification for his failure to do so. The AJ dismissed Complainant’s hearing request as a sanction and remanded the case to the Agency to issue a final decision. The Agency issued a final decision finding no discrimination. On appeal, we examined whether the sanction was tailored to the 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 by considering the pertinent factors as set forth in Royal v. Department of Veteran’s Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009): (1) the extent and nature of the noncompliance, including the justification presented by the noncomplying party; (2) the prejudicial effect of the noncompliance 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. Applying the first factor, Complainant’s noncompliance consisted of failing to submit his witness list by April 26, 2017, and Complainant did not adequately explain his failure to timely submit a witness list. 2021003956 3 Applying the second factor, our prior decision found that there was no clear indication that Complainant’s failure to submit his witness list by the deadline forced the Agency to expend time and resources preparing its witness list, noting that five of Complainant’s eight witnesses were already included on the Agency’s witness list. Applying the third factor, we found that, because the complaint was reassigned to a new AJ on April 2, 2018, more than a year after the February 2, 2017, order notifying the parties of the April 26, 2017, deadline, Complainant’s failure to timely submit a witness list did not result in a delay in the hearing process. The prior decision also noted that Complainant responded to the Order to Show Cause the day after it was issued. Applying the fourth factor, this appeared to be the only incident of noncompliance cited by the AJ. In applying the fifth factor, the prior decision noted that our recent decisions consistently held that dismissal of a hearing request was only appropriate in extreme circumstances, such as when a complainant engages in contumacious conduct or where a complainant fails to pursue their claim with due diligence. Edward W. v. Soc. Sec. Admin., EEOC Appeal No. 2019005957 (Apr. 15, 2021); Cassey B. v. Dep’t of Vet. Aff., EEOC Appeal No. 2019004838 (Sept. 24, 2020); Charlie K. v. Dep’t of Vet. Aff., EEOC Appeal No. 2019002293 (Sept. 22, 2020); Alice S. v. Soc. Sec. Admin., EEOC Appeal No. 2019002475 (Sept. 22, 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); Cleo S. v. U.S. Postal Serv., EEOC Appeal No. 0120181406 (Feb. 28, 2020); Georgianne B. v. Dep’t of Agric., EEOC Appeal Nos 0120181591 & 0120181592 (Feb. 27, 2020); Drucilla Y. v. Dep’t of the Treasury, EEOC Appeal No. 0120182728 (Feb. 27, 2020); Robert A. v. U.S. Postal Serv., EEOC Appeal No. 0120182698 (Feb. 21, 2020). To warrant dismissal of a hearing request, there must be a showing that Complainant either willfully disobeyed the AJ’s orders or unjustifiably failed to respond to those orders. In the absence of either circumstance, we cannot find that the integrity of the EEO process had been so compromised as to warrant the most severe sanction. As such, the prior decision found that the record was insufficient to demonstrate that Complainant had engaged in the kind of willful or obstinate refusal to comply with an AJ’s order that typified contumacious conduct or that he willfully failed to act with due diligence. Our decision in EEOC Appeal No. 2020002537 found that the AJ’s dismissal of Complainant’s hearing request was too harsh a sanction and vacated the Agency’s final decision. We remanded the matter and ordered the Agency to submit a copy of the complaint file to the Hearings Unit. ANALYSIS AND FINDINGS On request for reconsideration, the Agency contends that the Commission erroneously applied the law by requiring repeated noncompliance to warrant dismissal of a hearing request and suggests that Complainant’s failure to timely submit his witness list should be considered a continuous failure, as Complainant did not submit anything for more than a year. However, upon review, the appellate decision appropriately noted that a party must be put on notice before a sanction can be imposed. When the AJ issued an Order to Show Cause more than a year after the missed deadline, Complainant responded the next day and provided his witness list. According to the Agency, the Commission’s focus on whether Complainant’s conduct was contumacious effectively collapses the other four factors by requiring an effect on the integrity of the EEO process to warrant the most 2021003956 4 severe sanction. Although the Agency contends that the appellate decision misapplied the law, the Agency’s request for reconsideration does not discuss the more recent Commission decisions cited in the appellate decision. Upon consideration of the five factors for tailoring a sanction and recent Commission decisions, the appellate decision found that the AJ abused their discretion in dismissing Complainant’s hearing request. In the instant request for reconsideration, the Agency also reiterates contentions and arguments that were raised, or that should have been raised, on appeal. The Agency argues that the appellate decision misapplied material facts in finding that Complainant was unjustified in failing to comply yet found that it was not sufficient to warrant dismissal of the hearing request. On appeal, Complainant explicitly argued that the AJ’s decision to dismiss his hearing request was too harsh of a sanction. In the Agency’s Brief in Opposition to Complainant’s Appeal, the Agency stated that it was “[w]ell settled by the Commission” that the appropriate sanction under the circumstances was “dismissal of the hearing request and remand of the case for a final agency decision.” We emphasize that a request for reconsideration is not a second appeal to the Commission. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VII.A (Aug. 5, 2015); see, e.g., Lopez v. Dep’t of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law or will have a substantial impact on the policies, practices, or operations of the Agency. The Agency has not done so here. 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. 2020002537 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 To the extent it has not done so already, within 30 calendar days of the date this decision is issued, the Agency is directed to submit to the Hearings Unit of the EEOC’s Atlanta District Office a renewed request for a hearing on this complaint on behalf of Complainant, a copy of the complete complaint file, and a copy of this appellate decision. 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. Within five calendar days of the date of assignment of the new hearing number, the Agency shall provide written notification to the Compliance Officer. Thereafter, the Administrative Judge shall issue a decision 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 2021003956 5 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. 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 (Q0610) This decision requires the Agency to continue its administrative processing 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. 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 2021003956 6 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 October 26, 2022 Date Copy with citationCopy as parenthetical citation