0120091142
09-28-2012
Sisir K. Chattopadhyay, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (National Institutes of Health), Agency.
Sisir K. Chattopadhyay,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(National Institutes of Health),
Agency.
Appeal No. 0120091142
Hearing No. 531-2007-00244X
Agency No. NIH-NIAID-06-0006
DECISION
On January 2, 2009, Complainant filed an appeal from the Agency's November 26, 2008, final order concerning his 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). 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
Complainant is a former employee of the Agency, having been employed as a Staff Scientist (Biologist), GS-13, at the Agency's National Institutes of Health, National Institute of Allergy and Infectious Diseases, in Bethesda, Maryland. Complainant has filed numerous EEO complaints against the Agency in relation to his employment, dating to 1998, including a mixed-case complaint regarding his termination by the Agency on May 15, 2006.
On December 11, 2006, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of national origin (Indian), age (64), and in reprisal for prior protected EEO activity arising under Title VII and the ADEA when the Chief of the Laboratory of Immunopathology (LIP) allegedly harassed him from May 16, 2006 to October 11, 2006, as evidenced by the following:
1. on May 16, 2006 and August 25, 2006, the Chief of LIP denied him copies of extensive records (data books) related to research he conducted while employed with LIP;
2. on July 7, 2006, and July 10, 2006, the Administrative Officer, NIAID, instructed a security guard and other LIP staff to contact him by telephone at his home to inform him of a family emergency;
3. on July 12, 2006, July 21, 2006 and August 7, 2006, August 17, 2006, August 25, 2006 and October 11, 2006, the Chief of LIP sent harassing/threatening correspondence to the Complainant's home regarding co-authorship of a manuscript entitled, "Anaplastic, Plasmablastic and Plasmacytic Plasmacytomas of Mice: Relationships to Human Plasma Cell Neoplasms and Late-stage Differentiation of Normal B Cells."
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing.
On October 21, 2008, the AJ issued a decision without a hearing in favor of the Agency. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. In its final agency order, the Agency listed only issues 1 and 3, above, and stated that the AJ found that Complainant had failed to establish that the Agency had discriminated against him on any of his alleged bases by subjecting him to a pattern of harassment and a hostile work environment. Complainant filed the instant appeal.
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, at Chap. 9, � VI.B. (Nov. 9, 1999) (providing that both the Administrative Judge's determination to issue a decision without a hearing, and the decision itself, are subject to de novo review). 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 id. at Chapter 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").We must first determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record.
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 February 3, 2009, asking it to provide the EEOC with the complete record pertaining to the complaint at hand within 30 calendar days of notification of this appeal. See 29 C.F.R. � 1614.403. The Agency partially complied with this request in a submission dated February 14, 2011. That submission contained a copy of the Report of Investigation, and a partial copy of the Agency's final order (missing page 3). We note that this response came over 2 years from the date of the initial request for a file.
On August 31, 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, within twenty (20) calendar days. It noted the Commission's previous efforts to obtain the missing documents, through phone conversations and e-mail on March 10, 2011 and August 1, 2011. Specifically, the Notice to Show Cause requested the Agency to provide the following:
1. the complaint file (administrative file documents which would NOT be found in the Report of Investigation);
2. all AJ Orders and rulings;
3. AJ decision on summary judgment issued on October 21, 2008; and
4. all motions of the parties to the AJ (especially the motions on summary judgment).
The Notice to Show Cause provided, in pertinent part, that: "The Agency is hereby notified that if it fails to submit the entire record in twenty (20) days 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 to 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."
The Agency did not submit any response to the Commission's Notice to Show Cause, nor did it attempt to communicate with the point of contact listed in the Notice of Show Cause in order to indicate any intent to actually comply with our Order, or to provide the missing documents.
We find that the Agency's failure to submit the complete record makes it impossible for us to determine whether the AJ appropriately issued a decision without a hearing in the Agency's favor. Indeed, the record before us does not even contain a copy of the AJ's decision of October 21, 2008. A complete copy of the final agency order was available for review because it was submitted as part of Complainant's exhibits to his brief in support of his appeal.
Based on the Agency's repeated failure to submit the complete record, the imposition of sanctions is warranted. Vu v. Social Security Administration, EEOC Appeal No. 0120072632 (January 20, 2011) (sanctions appropriate where Agency failed to provide this Commission with motions and responses in support and opposition to decision without a hearing). The Agency was on notice that sanctions were possible if the Agency failed to submit the complete record. The Agency failed to submit the documentation requested and, consequently, a decision cannot be rendered on this case.
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 to submit the entire record. The Commission is unable to determine whether the AJ properly issued a decision without a hearing due to the incomplete record. Based on the foregoing, we find that the most appropriate sanction is to remand this matter for a hearing before an AJ. See Vu v. Social Security Administration, EEOC Appeal No. 0120072632 (January 20, 2011); Shehata v. Dep't of Veterans Affairs, EEOC Appeal No. 0120102315 (May 9, 2012).
We furthermore find that an additional sanction is warranted. The Agency is hereby ordered to notify Complainant of his entitlement to retain an attorney for the hearing, and the Agency will be required to pay Complainant's attorney's fees and costs for the entire hearing process. See Vu, supra.
CONCLUSION
Based on a thorough review of the record, we VACATE the Agency's final order implementing the AJ's decision without a hearing finding no discrimination, and we REMAND this matter for a hearing in accordance with the Order below.1
ORDER
1. Within ten (10) calendar days of the date this decision becomes final, the Agency shall notify Complainant that he is entitled to be represented by an attorney of his choice during the entire hearing process. The Agency shall pay for his attorney's fees incurred during the hearing process, regardless of the outcome of his case. The hearing process commences as soon as an AJ receives Complainant's file and does not conclude until the AJ issues a decision on the complaint. Complainant shall choose an attorney within thirty (30) calendar days of the date he receives the Agency's notification.
2. 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 AJ 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
September 28, 2012
Date
1 We note that by separate decision issued concurrently, we are remanding for hearing, on the same grounds, the complaints encompassed by Sisir K. Chattopadhyay v. HHS, EEOC Appeal No. 0120081177.
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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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