[Redacted], Sean L., 1 Complainant,v.John P. Roth, Acting Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jun 2, 2021

Appeal No. 2020002537 (E.E.O.C. Jun. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sean L.,1 Complainant, v. John P. Roth, Acting Secretary, Department of the Air Force, Agency. Appeal No. 2020002537 Hearing No. 410-2017-00011X Agency No. 9R1M16031F18 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s January 23, 2020 final decision finding no discrimination concerning his 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, we VACATE the Agency’s final decision and REMAND the complaint for further processing. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as an Aircraft Overhaul Supervisor, WS-8801-10, in the Resource Flight, 562nd Aircraft Maintenance Squadron at Robins Air Force Base, Georgia. On April 16, 2016, Complainant filed his complaint alleging discrimination based on race (Black), color (black), and age (over 40) when on November 30, 2015, he became aware that he 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. 2020002537 2 was not selected for the Aircraft Overhaul Supervisor, WS-8801-11 position on Vacancy Announcement Number 9R-ROBINS-1509747-489698-TJ. At the conclusion of the investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). On December 23, 2016, the AJ issued an Acknowledgement and Order. On February 2, 2017, the AJ issued an Order on Initial Conference, Deadlines, and Record Completion. Therein, the parties were notified of a discovery period ending March 20, 2017, a Summary Judgment Filing deadline of April 4, 2017, and a Hearing Witness List and Exhibits deadline of April 26, 2017. The Agency submitted a Hearing Witness List and Exhibits on April 20, 2017, listing five named witnesses. Complainant did not submit a Hearing Witness List and Exhibits by April 26, 2017. On April 2, 2018, the complaint was reassigned to a new AJ. The reassigned AJ asked the parties to submit a joint statement advising the AJ of any motion or other pending matters. On April 10, 2018, the Agency, unable to reach Complainant, submitted the case update indicating that a pre-hearing conference had yet to be scheduled, and that Complainant had not submitted a Hearing Witness List and Exhibits. On May 30, 2018, the AJ issued an Order to Show Cause to Complainant. Therein, Complainant was informed that he must provide the AJ, 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 Hearing Witness List and Exhibits by April 26, 2017, as set forth therein. The next day, on May 31, 2018, Complainant submitted a Response to Order to Show Cause, attaching his witness list. Complainant responded that his case should not be dismissed and should be heard because: 1. Investigation is not complete. 2. I as Complainant [Complainant’s name] have not abandoned my case. 3. My representative is no longer functioning at 100% for medical reasons: Attention deficit hyperactive disorder, Diabetes, and Depression. 4. Agency back logged cases extended cases further out than normal. Complainant’s witness list included the names of eight witnesses who would testify during the hearing. Five of these witnesses were already listed in the Agency’s April 20, 2017 witness list. On June 22, 2018, the AJ issued an Order of Dismissal denying Complainant’s hearing request. The AJ found that Complainant’s noncompliance warranted a severe sanction since he failed to timely submit his Hearing Witness List and Exhibits as required by the AJ’s Order and he failed to articulate a compelling justification for his failure. The AJ dismissed Complainant’s hearing request and remanded the case to the Agency to issue a final Agency decision based on the record. 2020002537 3 The Agency issued its final Agency decision concluding that it asserted legitimate, nondiscriminatory reasons for its action, which Complainant failed to rebut. Complainant filed the instant appeal. On appeal, Complainant contends that the AJ’s decision to issue an Order of Dismissal as a sanction for not submitting a Hearing Witness List and Exhibits by its deadline was too harsh and improper. In response to Complainant’s appeal, the Agency indicates that the AJ fashioned an appropriate sanction of dismissing Complainant’s hearing request when he failed to provide a timely Hearing Witness List and Exhibits with good cause. 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 (EEO MD-110), Chap. 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"). Dismissal of Complainant’s 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 a complainant, 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 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. 2020002537 4 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. Applying the first factor, the non-compliance consisted of Complainant’s failure to submit his witness list by April 26, 2017. Complainant’s justification for the non-compliance, as set forth in his response to the AJ’s Order for Show Cause, was apparently in part that his representative was not functioning well enough due to the representative’s medical conditions in order to submit a Hearing Witness and Exhibits by the deadline. Complainant makes some other arguments regarding the Agency’s actions or inactions which do not explain why Complainant did not timely submit a witness list. Applying the second factor, there is no clear indication that Complainant’s failure to submit his witness list by the assigned deadline forced the Agency to expend time and resources preparing its witness list. Indeed, we note that five of the eight witnesses on Complainant’s list were already included on the Agency’s witness list. Applying the third factor, we note that the complaint was reassigned to the instant AJ on April 2, 2018, more than a year after the former AJ’s February 2, 2017 Order notifying the parties of a Hearing Witness List deadline of April 26, 2017. Thus, the delay in the hearing appears to have nothing to do with Complainant’s failure to timely submit a witness list. We note that Complainant responded to the show cause the order the day after the show cause order was issued. Applying the fourth factor, there appears to be only this single incident of non-compliance noted by the AJ. 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 a complainant engages in contumacious conduct. 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 (March 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 2020002537 5 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 a 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). There must be a showing that Complainant either willfully disobeyed the AJ’s orders or unjustifiably failed to respond to those orders in order to warrant dismissal of the hearing request as a sanction. In the absence of either circumstance, we cannot find that the integrity of the 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 her discretion by dismissing the hearing. See Edward W. v. Soc. Sec. Admin., EEOC Appeal No. 2019005957 (April 15, 2021) (dismissal of hearing request rejected on appeal where AJ dismissed hearing request outright after only one day rather than issue an order to show cause depriving complainant of his opportunity to respond to the agency’s motion for sanctions and demonstrate that his responses to its discovery requests were adequate); 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 complainant's discovery when 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 complainant made earnest but unsuccessful effort to comply with an onerous acknowledgement and scheduling order). Moreover, it is well-settled that before a sanction can be imposed, the non-complying party must be put on notice that it could be sanctioned for its conduct and this is typically accomplished via an order to show cause. Chere S., supra. Show cause orders are unnecessary where a party has filed a motion for specific sanctions and the non-moving party has had an opportunity to respond. Id. (Emphasis added). With the foregoing considerations in mind, we find that Complainant’s very prompt response to the AJ’s Order to Show Cause reflects that Complainant had not repeatedly failed to comply with deadlines set by the AJ. Complainant did miss one deadline - submission of the witness list - for which no adequate excuse was provided. Although Complainant references his representative’s medical condition, the record contains no evidence supporting such an assertion or showing why such conditions would without further explanation be a valid excuse for failure to timely comply with the AJ’s order. 2020002537 6 We find the record before us is insufficient to demonstrate that Complainant had engaged in the kind of willful or obstinate refusal to comply with an AJ’s order that typifies contumacious conduct or that he willfully failed to act with due diligence. We therefore find that the AJ’s dismissal of Complainant’s hearing request was too harsh a sanction in that it prematurely curtailed the proceeding. CONCLUSION The Commission VACATES the Agency's final action and REMANDS the complaint to the Agency for further action in accordance with this decision and the Order herein. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit in Atlanta, Georgia, within 15 calendar days of the date this decision becomes final. 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. 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. 2020002537 7 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. 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). 2020002537 8 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 June 2, 2021 Date