07A10099
03-06-2003
Samuel Miranda, Jr. Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Samuel Miranda, Jr. v. United States Postal Service
07A10099
March 6, 2003
.
Samuel Miranda, Jr.
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 07A10099
Agency No. 4-A-006-0006-00
Hearing No. 160-A1-8058X
DECISION
INTRODUCTION
The agency timely initiated an appeal in connection with its final order
concerning complainant's equal employment opportunity (EEO) complaint
of unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission REVERSES the agency's final
order.
BACKGROUND
The record reveals that complainant, a Distribution Window Clerk, PS-05,
at the agency's Toa Alta, Puerto Rico facility, filed a formal EEO
complaint on April 10, 2000, alleging that the agency had discriminated
against him on the bases of disability (anxiety) and reprisal (prior
EEO activity) when:
(1) On August 14, 1999, complainant received a Notice of Seven (7)
Day Suspension dated July 30, 1999, for �Failure to Report for Duty as
Scheduled (AWOL) and Ending Your Tour Without Authorization�;
(2) On October 29, 1999, complainant was issued a Letter of Availability;
(3) On October 21, 1999, complainant was prohibited from returning to
work; (4) On an unspecified date, complainant's supervisor threatened
to issue him a removal notice;<1>
(5) On January 27, 2000, the EEO process was violated by the participation
of the EEO Counselor/Investigator; and
(6) On January 28, 2000, the Postmaster of Toa Alta intentionally harassed
complainant and aggravated complainant's emotional condition by the use
of obscene language.
At the conclusion of the investigation, complainant was provided a copy
of the investigative report and requested a hearing before an EEOC
Administrative Judge (AJ). On November 20, 2000, the AJ entered an
Acknowledgment and Order advising the parties that they were expected to
initiate and complete discovery within 90 calendar days. The parties
were advised that discovery requests were to be served within twenty
days of receipt of the Order and that responses must be served within
thirty days of the date of service of the request. On December 15,
2000, complainant served a discovery request. On February 14, 2001,
the agency's attorney called the AJ to advise that the agency required
additional time to locate files in Puerto Rico and that additional time
was necessary for discovery. By letter, dated February 15, 2001, the
agency requested an extension to March 31, 2001 to serve discovery.
On February 27, 2001, the AJ entered an Order notifying the parties
that all discovery must be completed by April 18, 2001. Meanwhile,
no discovery was served by the agency nor did the agency respond to
the complainant's discovery. The agency admits that it did not respond
in writing by April 18, 2001, and submits that agency's counsel had a
recollection that the AJ was notified by telephone that the agency was
still attempting to retrieve complainant's files and documents. On May 2,
2001, complainant filed a Request for Sanctions because the agency failed
to permit discovery and failed to obey the AJ's Orders. On May 8, 2001,
the agency sent a letter to the AJ requesting additional time to May 18,
2001, to serve its response to complainant's discovery request. The May
8, 2001 letter did not contain any reasons in support of its request for
a further extension of time. On May 9, 2001, the AJ issued an Order to
Show Cause directing the agency to show cause within 15 days of receipt
thereof why a default judgment should not be entered against the agency
in light of its failure to respond to complainant's discovery request
or comply with the February 27, 2001 Order.
The agency did not reply to the Order to Show Cause. On May 31, 2001,
the agency served its Response to Complainant's Request for Sanctions
maintaining that the agency had responded to complainant's discovery
request on May 25, 2001, and that �various other pending matters have
resulted in a delay in filing the Agency's response.� The agency's
response to complainant's discovery request generally denied and objected
to almost each and every item of discovery, and alleged that complainant
failed to engage in a good faith effort to resolve issues concerning
discovery and failed to file a motion to compel discovery.
On June 13, 2001, complainant renewed his Request for Sanctions and
on June 20, 2001, the AJ issued her Initial Decision. The AJ found
that notwithstanding the February 27, 2001 Order, which afforded the
agency additional time to respond to complainant's discovery request,
the agency failed to respond to complainant's discovery request before
the close of discovery on April 18, 2001. Further, the AJ found that
when the agency was issued an Order to Show Cause, the agency maintained
that it had responded to complainant's discovery, that the complainant's
attorney had failed to engage in a good faith effort to resolve discovery
issues, and complainant's attorney did not file a motion to compel.
The AJ found the agency's response untenable.
Based on the agency's failure to timely proceed with discovery and
its failure to comply with the February 27, 2001 Order, the AJ drew an
adverse inference in favor of complainant, thereby entering a default
judgment finding discrimination, and found that complainant was entitled
to remedial relief. On appeal, the agency requests that the Commission
affirm its rejection of the EEOC Administrative Judge's (AJ) findings.
CONTENTIONS ON APPEAL
The agency raises a number of contentions on appeal. The agency
contends that the AJ's decision to impose a default judgment was an
abuse of discretion and that the Initial Decision should be reversed.
The agency further contends that there was no direct flouting or willful
refusal as to the AJ's Orders, that delays were not intentional, that the
agency used good faith efforts to locate relevant files and documents,
and that sanctions should be imposed only in circumstances where there
is clear evidence of contumacious and willful conduct. The agency
also contends that its attorney was unaware of the AJ's Order to Show
Cause and that there is no evidence that either the hearing process or
complainant was unduly prejudiced by the delays.
Complainant contends that the agency demonstrated bad faith and
contumacious behavior, and a blatant disregard for the AJ's authority.
Further, that complainant was prejudiced by the agency's action and that
the AJ did not abuse her discretion.
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.; Rountree
v. Department of Treasury, EEOC Appeal No. 07A00015 (July 13, 2001).
When a complainant or agency fails to comply with an AJ's order, an AJ
may take action against the noncomplying party pursuant to 29 C.F.R. �
1614.109(f)(3), up to and including issuing a decision in favor of the
opposing party. See 29 C.F.R. � 1614.109(f)(3)(iv). Before sanctions
are imposed, the Commission requires the AJ to issue an order to
the offending party that makes clear that sanctions may be imposed
and the type of sanction that could be imposed for failure to comply
with an order unless the party can show good cause for that failure.
See Rountree, supra. A showing that the noncomplying party acted in bad
faith is not required. See Cornell v. Department of Veterans Affairs,
EEOC Appeal No. 01974476 (November 24, 1998). Furthermore, sanctions must
be tailored in each case to appropriately address the underlying conduct
of the party being sanctioned. See Hale v. Department of Justice, EEOC
Appeal No. 01A03341 (December 8, 2000). A sanction may be used to deter
the noncomplying party from similar conduct in the future, as well as
to equitably remedy the opposing party. Id. If a lesser sanction would
suffice to deter the conduct and to equitably remedy the opposing party,
an AJ may be abusing her discretion in imposing a harsher sanction.
See Pacheco v. United States Postal Service, EEOC Appeal No. 01970691
(November 25, 1998) (upholding Administrative Judge's issuance of
decision in complainant's favor as a sanction against the agency, where
Administrative Judge found that agency "acted deliberately in refusing to
provide complainant with relevant evidence in order to prove her claims,
in failing to state pertinent objections, in not filing timely motions,
and, most importantly, in refusing to comply with" discovery orders);
In the matter before us, the record establishes that the agency failed to
comply with the Acknowledgment and Order advising the parties that they
were expected to initiate and complete discovery within 90 calendar days;
that the agency failed to comply with the February 27, 2001 Order that
all discovery must be completed by April 18, 2001; and that the agency
failed to answer the Order to Show Cause. Assuming, arguendo, that the
agency's Response to Complainant's Request for Sanctions was a reply to
the Order to Show Cause, the AJ held untenable its explanation that it
had responded to the complainant's discovery request, that complainant
failed to engage in a good faith effort to resolve discovery issues,
and that there was no Order requiring the agency to comply with requests.
The record does not reflect any evidence that complainant failed to engage
in good faith efforts to resolve discovery issues. The agency submits
that its 22 page response is evidence of its compliance. A review of the
responses to the ten interrogatories shows that the agency responded to
two interrogatories concerning witnesses' names and their statements,
and objected to eight other interrogatories, generally on the basis
that the request is vague, ambiguous, and lacking sufficient precision,
or is overly broad, or the information is irrelevant to the issues in
the case, and is not reasonably calculated to lead to the discovery of
admissible evidence. Concerning complainant's twenty-one part request for
documents, a review of the agency's response shows that sixteen requests
were objected to, three responses advised that files were being retrieved,
that one response was to be under separate cover, and one response refers
complainant to the investigative file. The record does not reflect that
the agency attempted to otherwise provide discovery.
On appeal, the agency contends that a sanction should not have been
entered because its attorney was �unaware� of the Order to Show Cause
but provides little explanation for its lack of compliance with the
discovery requests. The agency does not suggest or argue that it did not
receive the Order to Show Cause but submits that its counsel was unaware
of the Order, and that she would have responded differently if she had
knowledge of the Order. However, the failure to respond is probably more
credibly explained by the agency's response to complainant's request for
sanctions that various other pending matters have resulted in a delay in
filing the agency's response. Being unaware of the Order to Show Cause
does not excuse the agency's failure to comply with the discovery Orders.
In response to the agency's contention that complainant was not unduly
prejudiced, complainant's appeal Brief demonstrates that complainant,
due to his deteriorating mental health condition, has been prejudiced by
the passage of time which continues to erode his ability to recall events.
Assuming, arguendo, that prejudice has not been shown, we note that one
of the purposes of the sanction is to deter the agency from ignoring
AJ's Orders in the future. The Commission has previously upheld the
issuance of a default judgment as a sanction for the agency's failure
to comply with orders issued by an Administrative Judge. See Germain
v. Environmental Protection Agency, EEOC Appeal No. 07A10048 (December 23,
2002) ( upholding AJ's issuance of decision in complainant's favor as
a sanction for the agency's failure to show good cause for its failure
to comply with AJ's orders); see Janda v. United States Postal Service,
EEOC Appeal No. 07A10018 (March 4, 2002) (upholding AJ's issuance of
decision in complainant's favor as a sanction for agency's failure to
respond to complainant's discovery requests in accordance with AJ's order
compelling responses and failure to respond to AJ's order to show cause)
Accordingly, we find that the AJ properly determined that the agency
failed to timely proceed with discovery and failed to comply with the
AJ's Orders concerning discovery. We further find that the AJ properly
drew an adverse inference in favor of complainant, thereby entering a
default judgment finding discrimination, and finding that complainant
was entitled to relief.<2> We cannot find, under these circumstances,
that the AJ abused her discretion.
CONCLUSION
After a careful review of the record, including both parties' arguments
on appeal, and arguments and evidence not specifically discussed in this
decision, the Commission REVERSES the agency's final order and ORDERS
the agency to take remedial actions in accordance with this decision
and the following ORDER.
ORDER (D0900)
The agency is ordered to take the following remedial action:
The agency is to correct complainant's personnel records to reflect
the expungement of any reference to the August 14, 1999 Seven (7)
Day Suspension, and restore complainant's pay and/or benefits, if any,
for the Seven (7) Day Suspension.
The agency, upon complainant's submission of appropriate supporting
documentation, is to correct complainant's personnel records to
reflect reimbursement for all wages and/or leave lost as a result of the
agency's failure to reasonably accommodate complainant's diagnosed mental
disability and payment of any monies due. See Report of Investigation,
Exhibit 3, 7, 10-11, 16-17.
The agency shall provide training for all involved managers and
supervisors with respect to their responsibilities and obligations under
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
The agency is to provide refresher EEO training for all EEO Counselors
assigned to Toa Baja and Toa Alta facilities.
The agency shall post a notice to all employees in the agency's Toa Baja
and Toa Alta facilities of their right to be free of discrimination
on the basis of disability and reprisal and to be assured that
discrimination will not recur, as set forth below in the paragraph
entitled, �Posting Order.�
The issue of compensatory damages and attorney's fees is REMANDED to
the Hearings Unit of the EEOC New York District Office. The agency is
directed to submit a copy of the complaint file 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 complaint file have been
transmitted to the Hearings Unit. Thereafter, the Administrative Judge
must be assigned to process the issue of compensatory damages and
attorney's fees in accordance with the regulations. <3>
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after
the date this decision becomes final. The complainant shall cooperate
in the agency's efforts to compute the amount of back pay and benefits
due, and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
"Implementation of the Commission's Decision."
The agency is further directed to submit a report of compliance, as
provided in the statement entitled "Implementation of the Commission's
Decision." The report shall include supporting documentation of the
agency's calculation of backpay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at its Toa Baja and Toa Alta, Puerto
Rico facilities copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
March 6, 2003
Date
NOTICE TO EMPLOYEES
P0STED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States
Government
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated __________ which found that a
violation of Section 510 of the Rehabilitation Act of 1973, as amended,
29 U.S.C. �791, and Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. � 2000e et seq. has occurred at the United
States Postal Service, Processing and Distribution Center, in Toa Baja
and Toa Alta, Puerto Rico (hereinafter "facility").
Federal law requires that there be no discrimination against any
employee or applicant for employment because of the person's RACE, COLOR,
RELIGION, SEX, NATIONAL ORIGIN, AGE, DISABILITY, or Prior EEO Activity,
with respect to hiring, firing, promotion, compensation, or other terms,
conditions or privileges of employment.
The facility supports and will comply with such Federal law and will
not take action against individuals because they have exercised their
rights under law.
The facility was found to have unlawfully discriminated against the
individual on the basis of disability and prior EEO activity related
to receipt of a Notice of Suspension, the issuance of a letter of
availability, complainant being prohibited from returning to work,
and a threat to issue complainant a removal notice. The agency was
ordered to: (1) correct complainant's personnel records; (2) provide
training for all involved managers and supervisors with respect to their
responsibilities and obligations under Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.;
(3) provide refresher EEO training for all EEO Counselors assigned to Toa
Baja and Toa Alta facilities; (4) pay non-pecuniary compensatory damages;
(5) pay attorney's fees; (6) back pay; and (7) post this Notice.
The facility will not in any manner restrain, interfere, coerce, or
retaliate against any individual who exercises his or her right to
oppose practices made unlawful by, or who participates in proceedings
pursuant to, Federal equal employment opportunity law.
____________________
Date Posted:_______________
Posting Expires:____________
29 C.F.R. Part 1614
1 By notice dated April 20, 2000, allegation 4 was dismissed for failure
to state a claim.
2 While the abbreviated record is insufficient to determine if
complainant is a qualified individual with a disability, a prima facie
case of retaliation is set forth.
3 Complainant states that he has complied with the AJ's order and has
submitted his claims for compensatory and other damages, as well as a
statement for attorney fees and costs with copies to the agency.