07A10103
01-28-2003
Helen Rhinesmith, Complainant, v. Paul H. O'Neill, Secretary, Department of the Treasury, (Internal Revenue Service), Agency.
Helen Rhinesmith v. Department of the Treasury
07A10103
January 28, 2003
.
Helen Rhinesmith,
Complainant,
v.
Paul H. O'Neill,
Secretary,
Department of the Treasury,
(Internal Revenue Service),
Agency.
Appeal No. 07A10103
Agency No. 00-1006
Hearing No. 110-A1-8161X
DECISION
The agency initiated an appeal in conjunction 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.
Complainant, a Tax Examiner employed at the agency's Atlanta Service
Center in Chamblee, Georgia filed a formal EEO complaint alleging that
in August 1999, her promotion to a GS-07 Customer Service Representative
position was rescinded, and she was denied admittance into Customer
Service Representative Training. When the agency failed to complete
the investigation within 180 days, complainant requested a hearing
before an EEOC Administrative Judge. See 29 C.F.R. � 1614.106(e)(2).
On January 18, 2001, complainant's request for a hearing was received
by the Hearings Unit of the Atlanta District Office. On January 31,
2001, the agency was ordered to produce the complaint file or explain
why it could not do so. Although the agency made some effort to contact
the Hearings Unit, it failed to follow through on its effort. On March
12, 2001, an Administrative Judge issued an Order to Show Cause within
fifteen days why the agency should not be sanctioned for failing to
produce the complaint file. The Order specifically stated that sanctions
could include the issuance of a decision in complainant's favor.
On April 17, 2001, having received no complaint file and no communication
from the agency, an Administrative Judge issued a decision in
complainant's favor. The Administrative Judge stated:
The agency's failure to respond is not simple negligence: It is contumacy,
that is disobedience. This dictates the imposition of the severest
of sanctions.
Decision on Liability (April 17, 2001). The Administrative Judge
scheduled a hearing for May 21, 2001 to determine to what relief
complainant was entitled. On July 13, 2001, the Administrative Judge
issued a Decision finding that complainant failed to prove she was
entitled to compensatory damages and ordering the agency to reinstate
complainant to the GS-7 position from which she was de-selected, to
assign her to either the 7:00 a.m. - 3:30 p.m. or 7:30 a.m. - 4:00
p.m. shift, and to pay appropriate back pay. On September 11, 2001,
the Administrative Judge issued a Decision awarding complainant $3,573.00
for attorney's fees and $300.00 for costs.<1>
On appeal, the agency states that it submitted the complaint file to the
Administrative Judge and complainant on April 19, 2001. The following
day it submitted a Motion to Vacate Decision which included a letter
of explanation for its failure to act.<2> The agency argues that
the Administrative Judge abused his discretion in denying the Motion
because the facts do not establish that the agency's conduct amounted
to contumacy and thus did not warrant the imposition of the severest
of sanctions. In support of this argument, the agency states that it
was not willfully disobeying the Administrative Judge's directives, only
that it was untimely in responding to them. The agency admits that its
actions constituted negligence and submits that a less severe sanction
would have been appropriate.
The Administrative Judge's authority to issue sanctions is set forth at
29 C.F.R. � 1614.109(f)(3).
When the complainant, or the agency against which a complaint is filed,
or its employees fail without good cause shown to respond fully and in
timely fashion to an order of an Administrative Judge, or requests for the
investigative file, for documents, records, comparative data, statistics,
affidavits, or the attendance of witness(es), the Administrative Judge
shall, in appropriate circumstances:
i. Draw an adverse inference that the requested information, or the
testimony of the requested witness, would have reflected unfavorably on
the party refusing to provide the requested information;
ii. Consider the matters to which the requested information or testimony
pertains to be established in favor of the opposing party;
iii. Exclude other evidence offered by the party failing to produce the
requested information or witness;
iv. Issue a decision fully or partially in favor of the opposing party; or
v. Take such other actions as appropriate.
29 C.F.R. � 1614.109(f)(3). Additional guidance can be found in the
Commission's Management Directive, EEO MD-110, November 1999, 7-9 and
Rules 11 and 37 of the Federal Rules of Civil Procedure. Sanctions should
be tailored to deter the party from similar conduct in the future and,
if warranted, to equitably remedy any harm incurred by the opposing
party. Sanctions should not be so severe that they result in inequity,
nor should they be so lenient that they fail to serve as a deterrent.
If a lesser sanction would suffice to deter the conduct and to equitably
remedy the opposing party, it may constitute an abuse of discretion
to impose a harsher sanction. See Hale v. Department of Justice, EEOC
Appeal No. 01A03341 (December 8, 2000).
We agree with the agency that its failure to respond to the
Administrative Judge's directives did not amount to contumacious
conduct. The Commission has generally not regarded a party's failure to
respond to an Administrative Judge's order as constituting contumacy.
The Commission found that contumacious conduct occurred in Bennett
v. Department of the Navy, EEOC Request No. 05980746 (September 19, 2000)
when complainant cursed the Administrative Judge, impugned his character,
showed disrespect for the agency's attorneys, and made personal and
unprovoked attacks on participants in the hearing. We thus conclude
that the Administrative Judge's characterization of the agency's conduct
as constituting contumacy was in error, but we are not persuaded by
the agency that the issuance of a decision in complainant's favor was
inappropriate under the circumstances of the instant case.
The agency argues that the sanction contemplated was too harsh because
the failure to timely produce the complaint file was neither willful
nor deliberate. The agency also argues that a lesser sanction would
have sufficed to deter its conduct and equitably remedy complainant.
We acknowledge that these arguments have merit. However, we also find
that in order for the Commission to find that the Administrative Judge
abused his discretion in sanctioning the agency as he did, the agency
should have raised these arguments before the Administrative Judge issued
his decision, rather than after the issuance of the decision. At the time
the Administrative Judge issued his decision, no agency representative
had offered any explanation for the agency's failure to comply with the
orders issued from the Hearings Unit, despite notice that the agency's
failure to do so could result in a default judgment for complainant.
In Janda v. United States Postal Service, EEOC Appeal No. 07A10018 (March
4, 2002), the Commission affirmed an Administrative Judge's issuance
of a default judgment in favor of complainant when the agency failed to
respond to complainant's discovery requests and to complainant's motions
for sanctions. In Janda, the Administrative Judge found that the agency
never proffered an explanation for its inaction but conceded that its
representative displayed a �non-cooperative attitude.� Upon review
of the record before us, we find that the agency failed to proffer an
explanation for its inaction and did not concede its negligence until
after the April 17, 2001 Decision on Liability was issued. Accordingly,
based on the information the Administrative Judge had when he issued his
decision, we find that he did not abuse his discretion in sanctioning
the agency by entering a decision fully in complainant's favor. See 29
C.F.R. � 1614.109(f)(3)(v).
Therefore, after a careful review of the record, including arguments and
evidence not specifically discussed in this decision, the Commission
reverses the agency's final order and directs the agency to take
corrective action in accordance with this decision and the Order below.
ORDER
1. Within sixty (60) days of this decision becoming final, the agency
shall offer complainant the position of Customer Service Representative
or a substantially equivalent position at the Atlanta Service Center
in Chamblee, Georgia with either of the following shifts: 7:00 a.m. -
3:30 p.m. or 7:30 a.m. - 4:00 p.m. Complainant shall be given a minimum
of fifteen days from receipt of the offer of placement within which
to accept or decline the offer. Failure to accept the offer within
the time period set by the agency will be considered a rejection of the
offer, unless complainant can show that circumstances beyond her control
prevented a response within the time limit.
2. Within sixty (60) days of this decision becoming final, the agency
shall award complainant back pay with interest and other benefits
due complainant, for the period from September 1, 1999 to the date she
assumes or declines to assume the position referenced above. The agency
shall determine the appropriate amount of back pay with interest and
other benefits due complainant, pursuant to 29 C.F.R. � 1614.501, no
later than sixty (60) 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 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.�
3. Within sixty (60) days of this decision becoming final, the agency
shall pay complainant $3,573.00 in attorney's fees and $300.00 in costs.
POSTING ORDER (G0900)
The agency is ordered to post at its Chamblee, Georgia facility 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.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (S0900)
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 (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
January 28, 2003
__________________
Date
NOTICE TO EMPLOYEES
POSTED 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 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. has occurred at the agency's
facility in Chamblee, Georgia (hereinafter this 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, or DISABILITY with respect to hiring, firing,
promotion, compensation, or other terms, conditions or privileges of
employment.
This facility was found to have discriminated against an employee when
an EEOC Administrative Judge sanctioned the Department of Treasury for
failing to respond to the Commission's directives. The facility was
ordered to award the employee a position with appropriate back pay and
to pay proven attorney's fees and costs. This facility will ensure that
officials responsible for personnel decisions and terms and conditions
of employment will abide by the requirements of all federal equal
employment opportunity laws and will not retaliate against employees
who file EEO complaints.
This facility will comply with federal law and 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 The agency, although rejecting the relief awarded by the Administrative
Judge, did not, on appeal, argue that it was improper or excessive.
2 The agency contended that: (1) although complainant's representative
argued to the contrary, it was holding the instant complaint in abeyance
based on its belief that the issue it raised was identical to an issue
raised in a class complaint that was pending certification; and (2)
because it only had original files, the files had to be sent to the
printing contractor for copying, and there was an administrative failure
in following through with having the copies mailed.