0120112178
08-17-2011
Robert A. Goldberg, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Robert A. Goldberg,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120112178
Hearing No. 451-2011-00013X
Agency No. 200306712009104919
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated February 10, 2011, 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.
Upon review, the Commission finds that Complainant's complaint was
properly dismissed.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as
a Psychologist at the Agency’s Black Hills Health Care System facility
in Hot Springs, South Dakota.
On January 12, 2010, Complainant filed a formal complaint alleging
that the Agency subjected him to discrimination on the bases of race
(Jewish), religion (Jewish), and reprisal for prior protected EEO activity
under Title VII of the Civil Rights Act of 1964 when, on September 24,
2009, he was not selected to fill the position of Staff Psychologist,
(Harlingen Clinic); on November 30, 2009, he was not selected to fill
the position of Psychologist (Primary Care); and, on November 30, 2009,
he was not selected to fill the position of Psychologist (PTSD).
The Agency accepted the complaint and conducted an
investigation. Complainant requested a hearing and the matter was
assigned to an EEOC Administrative Judge (AJ). Although the matter was
initially scheduled for a hearing on December 9, 2010, it was later
rescheduled to January 19, 2011, due to the Agency’s motion for a
continuance. Complainant did not object to the motion.
On January 22, 2011, the AJ issued an Order Dismissing Complainant’s
Complaint. The AJ’s decision sets out the facts resulting in the
dismissal order in detail. According the AJ’s decision, after initially
scheduling the hearing, she learned that the Commission’s room with
video-conference capabilities in its San Antonio office would not be
available on that date, and rescheduled the hearing to January 18,
2011. However, on January 6, 2011, the Agency representative informed
the AJ that all of the witnesses had already made travel arrangements
from Houston to San Antonio to testify on January 19, 2011. The Agency
informed the AJ that it had facilities with video conferencing available
in San Antonio on January 19, 2011.
Therefore, on January 12, 2011 the AJ stated she left a voice mail with
Complainant’s representative to inform him the hearing would occur
on January 19, 2011. Two days later, Complainant sought to continue
the hearing, stating he could not clear his schedule on January 19,
2011. Complainant stated he had patients with appointments on that
date. Complainant filed his motion for the continuance in the afternoon of
Friday, January 14, 2011, by email. However, the AJ was not in the office
to receive the email until Tuesday, January 18, 2011. At 6:30 a.m. on
January 18, 2011, the AJ left voice messages with both Complainant and
his representative that the hearing would go on as scheduled on January
19. The AJ also emailed an order denying Complainant’s motion for a
continuance at 7:51 a.m. the same day. In her order, the AJ noted that
the parties had agreed in a prehearing call that the hearing would be
scheduled for January 19, 2011; there was no indication that Complainant
attempted to reschedule his appointments; Complainant delayed in filing
his motion for a continuance until Friday afternoon before a long holiday
weekend; when contacted by the AJ with regard to Complainant’s motion,
the Agency’s representative confirmed she was scheduled to fly to
San Antonio; and eleven witnesses had been approved to testify at the
hearing and each of their work schedules were affected. Complainant was
directed to provide the AJ with his list of approved witnesses and the
order in which he wished to have them testify. He was advised that the
failure to do so could result in sanctions.
Complainant did not file the requested documents and failed to inform
the AJ that neither he nor his representative would be appearing at the
hearing. The AJ, the Agency’s representative, and a court reporter
were at the hearing site on January 19. Three psychologists, scheduled as
witnesses waited in an adjoining room. Video teleconferencing connections
had been made to three other sites. One of them was the facility from
which Complainant and his representative were to testify. The AJ then
left voice messages with Complainant and his representative informing them
that she was ready to start the hearing. At this point, Complainant’s
representative informed the AJ that he and Complainant would not be
participating in the hearing because Complainant could not cancel his
patient appointments. The AJ reminded the representative that Complainant
had been given seven days notice that the hearing would be on January 19h.
On January 20, 2011, the AJ issued am Order to Show Cause as to why
sanctions should not be issued against Complainant.
Complainant responded to the Order, stating he felt the AJ was biased
against him because the AJ had ruled against him in an earlier EEO
complaint; that the AJ’s message that the hearing would go forward on
the December 19 was not reduced to writing; he objected to the early start
time of the hearing; and asserted that “rigid compliance with a hearing
date would place the life or well being of his patients in jeopardy.”
The AJ found that Complainant’s explanations were insufficient to
avoid sanctions. Specifically, the AJ noted that there was nothing to
show Complainant made attempts to clear his schedule for January 19,
2011; Complainant failed to contact the AJ about any confusion over
the hearing date; each of the psychologists scheduled to testify also
had to cancel patient appointments; Complainant failed, as ordered,
to file a list of his witnesses’ order of appearance so that that the
witnesses could arrange their schedules accordingly; and Complainant’s
actions caused the Agency to unnecessarily expend limited resources on
travel, hotel reservations, per diem, and the cancellation of witness
appointments by six psychologists and a psychiatrist.
The AJ found that Complainant’s actions warranted that he be sanctioned.
The AJ further found that his complaint could not be resolved without
a hearing. Thus, the AJ dismissed the complaint with prejudice. The
Agency adopted the AJ’s dismissal and the instant appeal followed.
In his appeal, Complainant essentially makes the same arguments that he
made in response to the Order to Show Cause.
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. These sanctions
must be tailored in each case to appropriately address the underlying
conduct of the party being sanctioned. See Hale v. Dep’t of Justice,
EEOC Appeal No. 01A03341 (Dec. 8, 2000). 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
serve this purpose, an AJ may be abusing his or her discretion to impose
a harsher sanction. Id. 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. Dep’t of Transportation, EEOC Appeal No. 01870232 (Mar. 4, 1988).
As an initial matter, Complainant does not dispute that he was informed
on January 12 that the hearing would go on as originally scheduled
on January 19, 2011, and thus whether the message was in writing or
not, Complainant admits he knew when the hearing was scheduled to
occur. Further Complainant, in his appeal, states that the AJ denied
his motion for a continuance on January 18, 2011, so he clearly knew
then that the hearing was going on as scheduled the next day. And, as
noted by the AJ, in Complainant’s response to the Order to Show Cause,
he states he cleared his schedule for January 18, 2011. Complainant
provides no evidence or argument that he was unable to reschedule those
patients with appointments on January 19 for January 18 given that his
schedule was apparently clear on that date. The Commission also finds
that Complainant’s argument that the AJ was biased because she had
made a previous finding in favor of the Agency to be without merit.
Under the facts of this case, the Commission finds that the AJ’s
use of sanctions and the dismissal of the complaint with prejudice was
appropriate. Complainant was given adequate notice that the hearing was
going to be held on January 19, 2011. Complainant did not explicitly
inform the AJ that he would not participate in the hearing until the AJ
had to contact Complainant on the day of the hearing – when all of
the witnesses were waiting. Complainant’s responses to the Order to
Show Cause were insufficient to excuse his failure to appear. As such,
given that the AJ also determined that the matter could not be resolved
without a hearing, her decision to dismiss the matter with prejudice
was appropriate.
Accordingly, the Agency's final decision adopting the AJ’s dismissal
of the 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
August 17, 2011
__________________
Date
2
0120112178
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120112178