0120121787
09-06-2012
Elnora B. Vernon, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Elnora B. Vernon,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120121787
Hearing No. 531-2011-00184X
Agency No. HQ-10-0741-SSA
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated March 15, 2012, adopting an EEOC Administrative Judge's (AJ) Memorandum and Order of Dismissal (decision) dated January 27, 2012, dismissing her complaint and denying her request to subsume into a class action her individual 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. 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 worked as an Accounting Technician at the Agency's Division of Central Accounting and Reporting (DCAR), Office of Finance (OFTO), Office of Financial Policy and Operations (OOFPO) in Woodlawn, Maryland. On August 9, 2010, she filed a formal complaint, as amended, alleging that the Agency subjected her to discrimination based on her disability (hip/walking) and age (63) when on June 7, 2010, she learned that she was not selected for a promotion to the position of Fiscal Management Analyst, GS-0501-09, announcement number SH-333139.1 It was advertised from March 29, 2010 to April 16, 2010.
Following an investigation Complainant requested a hearing before an EEOC AJ. The AJ made a decision dated January 27, 2012, which was mailed on February 6, 2012, dismissing Complainant's complaint without a hearing because she did not comply with his orders dated July 5, 2011. The orders granted the Agency's April 2011 Motion to Compel Complainant's Discovery Responses [because they were deficient] and directed her to respond to the discovery by July 15, 2011, and to submit a pre-hearing statement by July 29, 2011. Complainant provided an additional discovery response. In his decision the AJ found that to date Complainant did not provide complete discovery responses and that she also did not submit a pre-hearing statement. The AJ found that because Complainant did not respond to the Agency's motions,2 explain her failure to provide complete discovery responses, or file a pre-hearing statement her complaint was dismissed with prejudice pursuant to 29 C.F.R. � 1614.109(b) and 107(a)(7) for failure to comply with his orders dated July 5, 2011.
Meanwhile, in October 2008, in the case of Jantz v. Social Security Administration, an EEOC AJ certified the following class action against the Agency:
All current and former employees with targeted disabilities at the Social Security Administration who, on or after August 22, 2003, have applied for and made a Best Qualified List for promotion, but were not selected for promotion.
The AJ recounted that EEOC defines the following as targeted disabilities: deafness, blindness, missing extremities, partial paralysis, complete paralysis, convulsive disorders, mental retardation, mental illness, and genetic and physical conditions affecting the limbs and/or spine. On appeal the Commission affirmed the AJ's decision. Jantz v. Social Security Administration, EEOC Appeal No. 0720090019 (Aug. 25, 2010), request for reconsideration denied, EEOC Request No. 0520110045 (Jan. 11, 2011). The Commission ordered in part that the Agency notify potential class members of the accepted class claim in accordance with 29 C.F.R. � 1614.204(e).
Complainant apparently was not notified by the Agency of the accepted class claim. On July 3, 2011, she filed a motion with AJ in the case before us requesting that her disability claim be subsumed into the Jantz class action. She argued that she fit within the definition of the class because she had mobility issues arising from her hip replacement and consequent pain and used a cane for mobility, and a mental disability. The Agency opposed the motion to subsume. It argued that Complainant did not identify a targeted disability, of which it gave examples including paralysis and by reference partial paralysis. The Agency argued that in her deposition Complainant narrowed her disability claim to hip replacement. The Agency discussed the medical documentation in the record and argued nothing in the file indicated she had a targeted disability.
When Complainant was 60 a physician wrote she had left hip pain which increased even when she walked a short distance. Her left hip was replaced around September 2009. Six weeks later a physician wrote she was still using a cane with a mild limp and was doing well. About three months after the surgery a physician wrote Complainant needed more time for recovery, but could resume all usual activities with her left hip. He added Complainant stated she was having some right sided groin pain, and had some mild arthritis on that side. In her deposition Complainant testified the surgery resolved the problem in her left hip. Complainant's deposition, 146. In November 2011 a physician recommended replacement of Complainant's right hip.
In his January 27, 2012, decision the AJ denied Complainant's motion to subsume, referring to the Agency's argument. The AJ advised, however, that Complainant may refile her motion to subsume, with supporting medical documentation, with the AJ presiding over the Jantz case, and if it was determined her disability fell within the definition of a targeted disability she will be part of the class action case. The AJ found that if her disability did not fall within the definition of a targeted disability she cannot refile her EEO complaint to address any claim of disability discrimination because she violated his July 5, 2011, Orders.
On March 14, 2012, the Agency issued a final order adopting the AJ's decision without modification.
CONTENTIONS ON APPEAL
On appeal Complainant, by and through her non-attorney representative, requests that her case be subsumed into the Jantz disability class action, and she fits within it based on partial paralysis, which in no way is detailed. She argues she has a mental disability but does not argue it is a targeted disability.
In opposition to the appeal the Agency argues that Complainant's appeal is premature because she did not follow the AJ's instructions to refile her motion to subsume, with supporting medical documentation, with the AJ presiding over the Jantz case, but instead filed her motion in an appeal. The Agency added that Complainant failed to provide supporting medical documentation and is contending for the first time that she has partial paralysis. The Agency argues that the AJ's January 27, 2012 Order should be affirmed. In the alternative it argues that a decision should be made without a hearing finding no discrimination, and incorporated the motion it previously filed with the AJ arguing this.
ANALYSIS AND FINDINGS
We disagree with the Agency's contention that Complainant's appeal is premature. She made a timely appeal from the Agency's final order adopting the AJ's decision dismissing her complaint and declining to subsume it into the Jantz class action. Under our regulations the AJ presiding over Jantz is not required to make a determination on whether Complainant is a class member until the relief stage when the class member claims are properly presented to the AJ, albeit the AJ has discretion to decide earlier. 29 C.F.R. � 1614.204(l)(3). A determination needs to be made now on whether Complainant's individual complaint should be subsumed into the Jantz class action since it impacts whether processing on her individual complaint should be held in abeyance.
EEOC Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chap. 8.III.C, page 8-4 (Nov. 9, 1999) instructs that an individual complaint that is filed before or after the class complaint is filed that comes within the definition of the class claim(s) will not be dismissed but will be subsumed within the class complaint. Once the individual complaint is subsumed into a class complaint, processing of it outside the class complaint is held in abeyance.
As an initial matter Complainant's age claim is outside the scope of the accepted class claim in Jantz, and hence should not be held in abeyance. On appeal Complainant argues that her targeted disability is partial paralysis. She did not raise this previously and the medical documentation in the record when the AJ made his decision did not indicate paralysis, it indicated the contrary. If Complainant is contending that she developed partial paralysis after the AJ's decision this would be very unfortunate but not relevant to the processing of her non-promotion claim which arose before. We decline to order that any part of Complainant's individual complaint be subsumed into the Jantz class action.
In its November 2011 motion to the AJ for sanctions the Agency argued that in similar circumstances the Commission has determined that an appropriate sanction was to dismiss the Complainant's request for a hearing. We agree. The Agency asked the AJ to dismiss Complainant's request for a hearing and remand the case for a final Agency decision.
An AJ has the authority to sanction a party for failure, without good cause shown, to fully comply with an order. See 29 C.F.R. � 1614.109(f)(3). However, 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. Where a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing his discretion to impose a harsher sanction. See Hale v. Department of Justice, EEOC Appeal No. 01A03341 (Dec. 12, 2000). We find Complainant engaged in simple negligence, not contumacious conduct. Accordingly, as argued by the Agency, the fitting sanction is to dismiss Complainant' hearing request. See e.g., Bearden v. United States Postal Service, EEOC Appeal No. 0120065258 (May 29, 2008) (affirming dismissal of the hearing request and remanding the case to the Agency for final agency decision where Complainant repeatedly failed to respond to discovery requests or comply with the AJ's orders).
CONCLUSION
The Agency's final order which adopted the AJ's January 27, 2012 decision is AFFIRMED in part and REVERSED in part. Specifically, the AJ's decision to deny Complainant's motion to subsume her individual complaint into the Jantz class action is affirmed. The AJ's decision to dismiss Complainant's individual complaint with prejudice is reversed. On remand the Agency shall comply with the order below
ORDER
The Agency shall issue a final decision on Complainant's complaint, appealable to this office, within 60 calendar days after this decision becomes final.
A copy of the final decision must be sent to the Compliance Officer as referenced below.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
September 6, 2012
__________________
Date
1 Complainant initially alleged other disabilities. In a deposition taken on May 10, 2011, she testified that she believed the disability discrimination was based on her hip/walking, not other impairments. Complainant's deposition at 129 - 130, 132, 134 - 140.
2 On July 31, 2011, Complainant replied to one of the motions by erroneously responding to specified interrogatory questions and a document request which the Agency withdrew on June 16, 2011. She did not respond to the Agency's November 7, 2011, motions for sanctions, which the AJ cited.
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0120121787
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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