0120130893
05-20-2013
Todd J. Schoenrogge, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Todd J. Schoenrogge,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120130893
Hearing No. 570-2010-00392X
Agency No. EOI200900322
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 6, 2012, dismissing 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was an applicant for employment with the Agency.
On May 1, 2009, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), national origin (German), sex (male), religion (agnostic), disability, age (45), and reprisal concerning the Agency's failure to hire him for several Legal Assistant positions.
The Agency investigated the complaint and Complainant requested a hearing. During the hearing process, Complainant claimed, among other things, that the person claiming to be the Agency's representative had not been properly authorized to serve in that capacity, which the EEOC Administrative Judge (AJ) assigned to the case purportedly addressed in June 2012. Thereafter, the Agency filed a motion to compel, asserting Complainant was failing to cooperate with its discovery requests. However, Complainant continued to have concerns regarding the Agency's representative and did not respond. The AJ ordered Complainant to comply with his discovery obligations. Complainant was cautioned as to the imposition of sanctions if he continued to fail to cooperate as ordered.
On September 10, 2012, the AJ issued Complainant an order giving him a final opportunity to comply with his discovery obligations. Complainant did not comply. The Agency filed a motion to dismiss, suggesting that the matter be dismissed in its entirety because of Complainant's failure to cooperate and his disregard for the Commission's regulations and the AJ's orders. Complainant responded to the Agency's motion on September 28, 2012, raising his previous complaints regarding the Agency's representative and accusing the AJ of an "extreme pro-Agency bias."
On October 5, 2012, the AJ stated that she received 20 voice mail messages from Complainant which filled her voice mailbox. The AJ noted that Complainant spoke at length and in an erratic manner regarding substantive matters regarding his complaint, and included lewd and vulgar statements about Agency officials. Agency counsel advised the AJ that he had also received approximately 50 minutes worth of similar messages form Complainant.
Complainant informed the AJ that the Agency had contacted Federal Protective Services (FPS) regarding the foregoing communications, and requested sanctions against the Agency. The FPS also contacted the AJ and told her that Complainant had called the Agency approximately one hundred times.
The AJ dismissed the complaint in its entirety with prejudice. The AJ noted that Complainant had been warned of possible sanctions. The AJ found that Complainant failed repeatedly to comply with his discovery obligations and also engaged in a serious abuse of the process, in filling the voice mail box of the AJ and Agency's counsel with erratic messages regarding his complaint, including lewd and vulgar messages. The AJ noted that Complainant's conduct required the involvement of FPS and local police officers. Thus, the AJ concluded that Complainant's conduct rose to the level of contumacious conduct warranting the dismissal of the complaint. The AJ issued an Order of Dismissal With Prejudice.
The Agency adopted the AJ's dismissal and the instant appeal followed. In his appeal, Complainant basically complains about the decisions of the AJ and the Agency's representative. Complainant notes that the charges brought in the state court were dismissed.
ANALYSIS AND FINDINGS
An AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3). The sanctions available to an AJ for failure to provide requested relevant information 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. See Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). 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 his or her discretion to impose a harsher sanction. Dismissal of a complaint by an AJ as a sanction is only appropriate in extreme circumstances, where the complainant has engaged in contumacious conduct, not simple negligence. See Thomas v. Department of Transportation, EEOC Appeal No. 01870232 (March 4, 1988).
Upon review of the record in this case, we find that under the circumstances presented here, it has been established that Complainant engaged in contumacious conduct as set forth in the AJ's decision. Repeatedly refusing to comply with the AJ's discovery orders despite a number of chances and warnings concerning the possibility of sanctions, as well as the numerous inappropriate voice messages to the AJ and the Agency requiring the intervention of FPS and the local police, was clearly contumacious conduct.
Accordingly, the Agency's final order adopting the dismissal of Complainant's complaint with prejudice is AFFIRMED.
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 (S0610)
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. 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. If you file a request to reconsider and also file a civil action, 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
May 20, 2013
__________________
Date
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0120130893
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130893