0120102870
01-08-2013
Dorothy Kelly, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services, Agency.
Dorothy Kelly,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services,
Agency.
Appeal No. 0120102870
Hearing No. 530-2008-00140X
Agency No. HHS-OS-0100-2007
DECISION
On June 24, 2010, Complainant filed an appeal from the Agency's June 25, 2010 final order concerning her equal employment opportunity (EEO) 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. The Commission accepts the appeal pursuant to
29 C.F.R. � 1614.405(a).1 For the following reasons, the Commission VACATES the Agency's final order and REMANDS the complaint for an administrative hearing.
ISSUE PRESENTED
The issue presented is whether the Agency should be subject to sanctions for failing to respond to the Commission's Notice to Show Cause and for failing to submit a complete copy of the complaint file in this appeal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Public Health Advisor (Regional Minority Health Coordinator), GS-0685-13, at the Agency's Office of Public Health and Science, Office of Minority Health, in Philadelphia, Pennsylvania. On June 25, 2007, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American), color (Black), age (59), and reprisal for prior protected EEO activity when:2
1. On or about December 12, 2006, she became aware that the Agency did not select her for the position of Senior Public Health Advisor, GS-0685-14, advertised under vacancy announcement number HHS-OS-2006-0585; and
2. On February 7, 2007, she received a Fully Successful rating on her 2006 performance appraisal.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. Over Complainant's objections, the AJ granted the Agency's April 1, 2009 motion for a decision without a hearing and issued a decision without a hearing on May 26, 2010. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency discriminated against her as alleged.
ANALYSIS AND FINDINGS
In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See 29 C.F.R. � 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, � VI.B. (Nov. 9, 1999) (providing that an AJ's "decision to issue a decision without a hearing pursuant to [29 C.F.R. � 1614.109(g)] will be reviewed de novo"). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis - including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. See EEO MD-110, at Ch. 9, � VI.A. (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").
The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. � 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249. The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.
Upon receipt of this appeal, we sent the Agency a letter dated July 21, 2010, asking it to provide the Commission with the complete record pertaining to the complaint within 30 calendar days of notification of this appeal. See 29 C.F.R. � 1614.403. The Agency partially complied with this request in submissions received on August 10, 2010 and November 24, 2010. Those submissions contained portions of the record, but not the complete record.
On August 3, 2012, the Commission issued a "Notice to Show Good Cause Why Sanctions Should Not Be Imposed" (Notice to Show Cause). The Notice to Show Cause ordered the Agency to submit the complete complaint file or provide good cause why it could not, through evidence and argument, by August 24, 2012. It noted the Commission's previous efforts to obtain the missing documents, through emails on January 11, 2012 and July 10, 2012. Specifically, the Notice to Show Cause requested the Agency to provide the following:
a. Complainant's brief in support of the appeal;3
b. Complainant's April 7, 2009 opposition to the Agency's motion for a decision without a hearing;
c. Complainant's entire March 13, 2009 deposition transcript;4 and
d. Exhibits and pages that are missing from the ROI.5
i. Exhibit 22 (page 158)
ii. Exhibit 23b (page 173)
iii. Exhibits 23d-f (pages 183-86)
iv. Exhibit 26 (page 208)
v. Exhibit 27 (page 215)
vi. Exhibits 31 and 32 (pages 223-24)
The Notice to Show Cause provided, in pertinent part, that: "The Agency is hereby notified that if it fails to submit the entire record not later than August 24, 2012 or show good cause why it cannot do so, OFO may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the Agency; (2) consider the matters which the requested information pertains to be established in favor of the Complainant; (3) issue a decision fully or partially in favor of the Complainant; or (4) take such other action(s) as appropriate."
By the August 24, 2012 deadline, the Agency had not submitted a response to the Commission's Notice to Show Cause, nor had it attempted to communicate with the point of contact listed in the Notice to Show Cause in order to demonstrate any intent to actually comply, or to provide the missing documents. On December 11, 2012, the Agency submitted documents pertaining to the complaint file.
Based on the Agency's repeated failure to submit the complete record, including its failure to adhere to the August 24, 2012 deadline contained in the Notice to Show Cause, the imposition of sanctions is warranted. See Vu v. Soc. Sec. Admin., EEOC Appeal No. 0120072632 (Jan. 20, 2011) (sanctions appropriate where the agency failed to provide the Commission with motions and responses in support and opposition to decision without a hearing). The Agency was on notice that sanctions were possible if it failed to submit the complete record by August 24, 2012.
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). Several factors are considered in "tailoring" a sanction and determining if a particular sanction is warranted: 1) the extent and nature of the non-compliance, and 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; and 4) the effect on the integrity of the EEO process. Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007).
In the instant matter, the Commission finds that the Agency failed to comply with the Commission's request, as specified in the Notice to Show Cause, to submit the entire record by August 24, 2012. We note that the Agency submitted documents pertaining to the complaint file on December 11, 2012, over 100 days past the deadline contained in the Notice to Show Cause. Notwithstanding the Agency's late submissions, however, we find that sanctions are warranted and imposed due to the Agency's prior failure to provide the complete record. The Commission's regulations are perfectly clear with respect to the Agency's obligation to submit the complete record and to do so in a timely manner. 29 C.F.R. � 1614.403(e) provides that "[t]he agency must submit the complaint file to the Office of Federal Operations within 30 days of initial notification that the complainant has filed an appeal." EEO MD-110, Chapter 9,
� IV.F provides, in relevant part, that "[a]gencies should develop internal procedures that will ensure the prompt submission of complaint files upon ... notice that a complainant has filed an appeal." Based on the foregoing, we find that the most appropriate sanction is to remand this matter for a hearing before an AJ. See Shehata v. Dep't of Veterans Affairs, EEOC Appeal No. 0120102315 (May 9, 2012); Vu v. Soc. Sec. Admin., EEOC Appeal No. 0120072632 (Jan. 20, 2011).
CONCLUSION
Based on a thorough review of the record, the Commission VACATES the Agency's final order implementing the AJ's decision finding no discrimination, and REMANDS the matter to the Agency in accordance with the Order below.
ORDER
The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the EEOC's Baltimore Field Office 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 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 (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
___1/8/13_______________
Date
1 We note that Complainant prematurely appealed this matter to the Commission before the issuance of the Agency's final order. However, because the Agency subsequently issued a final order adopting the AJ's decision, we nonetheless accept Complainant's appeal.
2 The record reflects that Complainant's First Level Supervisor (S1) was the selecting official in claim 1 and the rating official in claim 2.
3 The record is missing pages 4, 6, 7, and 36 of Complainant's brief.
4 The record contains only pages 1, 17, 35, 41, and 43 of Complainant's deposition transcript.
5 Upon further review, we note that ROI Exhibits 22, 23d, and part of 23e appear to be available for review because they were submitted as part of Complainant's appeal submission and as part of the Agency's motion for a decision without a hearing. In addition, we note that ROI Exhibit 27, aside from page 215, is included in the record.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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