0120122818
02-19-2013
Robert A. Cauldwell, Complainant, v. Sheila C. Bair, Chairman, Federal Deposit Insurance Corporation, Agency.
Robert A. Cauldwell,
Complainant,
v.
Sheila C. Bair,
Chairman,
Federal Deposit Insurance Corporation,
Agency.
Appeal No. 0120122818
Hearing No. 510-2012-00101X
Agency No. FDICEO-11-028
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 7, 2012, regarding his complaint of unlawful 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Resolutions and Receiverships Specialist at the Agency's East Coast Temporary Satellite Office facility in Jacksonville, Florida.
On May 26, 2011, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of "gender identity or expression"1 ("openly gay male"), sexual orientation, and religion (not religious) when he was subjected to ongoing harassment and discrimination. In support of his claim, Complainant alleged the following:
1. On August 21, 2010, while Complainant was playing golf with co-workers on a private outing, the Manager, admitted to him that he did not know how to handle the relationship between Complainant and his partner and said that he thought of them as "friends" just to get it set in his mind.
2. On September 15, 2010, Complainant stated that he asked the Manager why he could not go on more closings. The Manager told Complainant, "you can't introduce yourself as, 'Hi, I am Rob and I am gay.'"
3. On September 16, 2010, Complainant asked to be removed from the Claims Administration System (CAS) program, but the Manager denied the request. When Complainant asked why he could not be a part of the CAS user group, the Manager stated, "I have to take care of my girls, although you think you're a girl, you're not." Following that conversation, Complainant was not allowed to earn any overtime by working in any CAS related activities or closings.
4. On October 14, 2010 and December 7, 2010, Complainant again requested to leave the CAS program because he was not involved in the process and because he had other duties in other departments that required his attention. However, the Manager denied the requests.
5. On January 6, 2011, in front of three of Complainant's co-workers, the Manager asked if Complainant was going to a gay bar because if he was, the Manager did not want to ride with Complainant.
6. On January 7, 2011, on the ride to the restaurant, the Manager told Complainant that, "he [Complainant] would burn in hell" and asked what Complainant would do "when the rapture came and everyone started popping up into the air." On the same night when Complainant pulled out his money to pay the valet, the Manager asked if the money was for the gay strippers.
7. In February 2011, Complainant was scheduled to be the Claims Agent in Charge (CAIC), Subject Matter Expert (SME) for the closing of a Deposit Insurance National Bank (DINB). However, the Manager replaced Complainant three days before the DINB assignment without cause. On February 8, 2011, after Complainant reported the incident, the Manager pulled Complainant away from his co-workers, confronted Complainant and stated that he could not believe that Complainant went to Human Resources with this issue because he really liked Complainant and gave Complainant extra assignments. When the Manager asked Complainant if he would like to talk about it, Complainant told him that he would be fine. The Manager replied, "I am not worried about me. I am worried about you." Complainant took that to be a threat.
The complaint was accepted for an investigation. Following the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ).
Prior to the scheduling of a hearing date, the Agency made its initial discovery requests on January 30, 2012. Complainant, who was not represented by legal counsel, initially responded to the requests by noting that the information requested by the Agency had already been provided during the Agency's investigation. By email to the Agency representative dated February 2, 2012, Complainant indicated that he had spoken to the AJ and now understood what he needed to provide to the Agency in response to the discovery requests. The Agency gave Complainant another opportunity to respond to the interrogatories with a due date of February 29, 2012.
By email dated February 22, 2012, Complainant provided the Agency with his responses to the interrogatories. He also provided a number of documents by regular mail, as well as his response to the Agency's stipulation of facts.
On February 27, 2012, the Agency found that the responses were still not complete and filed a motion with the AJ to compel Complainant to respond to the interrogatories. The Agency provided a list of the interrogatories which it found to be lacking and noted with each request that the Agency "is properly attempting to identify, through discovery, the specific legal and factual issues which are in dispute. Complainant's specific position on the issues raised in the referenced discovery requests is not equally available to the Agency. Only Complainant knows exactly what matters are in dispute and the basis for that dispute."
On March 1, 2012, the AJ granted the Agency's motion and issued an order to compel. The AJ ordered Complainant to provide further response to the Agency's interrogatories number 8, 10 - 17, 22 and 23, as well as provide any documents responsive to interrogatory 9. Complainant was ordered to provide responses by March 16, 2012. By email dated March 1, 2012, Complainant provided his responses and indicated that he had executed a release for his medical records in hopes of getting them to the AJ and the Agency by March 16, 2012.2 On March 26, 2012, the Agency filed a motion with the AJ for sanctions against Complainant, asserting his responses were still inadequate and not responsive.
The AJ summarily found that Complainant's responses were inadequate and that he failed to provide justification for his failure to properly comply with the AJ's order to compel. The AJ decided sanctions were appropriate and, as a sanction, dismissed Complainant's hearing request and remanded the case back to the Agency to issue a final decision without a hearing.
On June 7, 2012, the Agency issued its final decision finding no discrimination. This appeal followed.
ANALYSIS AND FINDINGS
An EEOC AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. �1�614.109(f)(3). Such sanctions may include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party, or other actions, as appropriate. Id. However, such sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing her discretion to impose a harsher sanction. Hale v. Dep't of Justice (U.S. Marshals Service), EEOC Appeal No. 01A03341 (Dec. 8, 2000).
Upon review of the record, we are not persuaded that Complainant's actions warranted the sanction levied by the AJ in the instant case. A review of the record shows that Complainant, who was not represented by legal counsel, repeatedly attempted to respond to the Agency's requests and provided those responses by the deadlines imposed. The record shows that Complainant was frequently in communication with the Agency and the AJ regarding the interrogatories and tried to provide information as requested. Further, we find that although the Agency continued to request additional information, it failed to clarify specifically what it was seeking from Complainant.3 Based on these circumstances, we are not persuaded that Complainant affirmatively failed to cooperate with the discovery process and the AJ's orders. Furthermore, it appears that there was sufficient information in the investigative report for the parties to proceed to the hearing on whether Complainant was subjected to discrimination as alleged in his complaint. Accordingly, we determine that the dismissal of the hearing by the AJ is not supported by the record.
CONCLUSION
For the reasons set forth above, we conclude that the AJ abused his discretion in sanctioning Complainant with the dismissal of his hearing request. Accordingly, we VACATE the Agency's final decision on the merits of Complainant's claims and REMAND the complaint for further processing in accordance with the following Order.
ORDER
The Agency shall submit to the Hearings Unit of the Miami EEOC field office the request for a hearing within fifteen (15) calendar clays of the date this decision becomes final, along with an explanation of the request by referring to this decision. The Agency is directed to submit a copy of the complaint file, hearings record in case 430-2009-00353X, and a copy of this decision to the EEOC Hearings Unit within fifteen (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 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 (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 19, 2013
__________________
Date
1 "Gender identity or expression" and "sexual orientation" were among the bases of discrimination printed on a check box list on the Agency's formal EEO complaint form.
2 By letter dated March 22, 2012, to the Agency's attorney, Complainant indicated that there was a delay in his physician sending copies of his medical records due to the physician's family emergency, but that they were being sent.
3 Some of the discovery requests at issue requested Complainant's "legal support" for his claim that he was discriminated against because of his sexual orientation. The Commission has held that Title VII prohibits sex stereotyping and gender discrimination, and not just discrimination on the basis of biological sex. The term "gender" encompasses not only a person's biological sex, but also the cultural and social aspects associated with masculinity and femininity. Macy v. Dep't of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).
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0120122818
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122818