05A10076
08-12-2003
Andrew J. Sheppard, Complainant, v. Cari M. Dominguez, Chair, Equal Employment Opportunity Commission, Agency.
Andrew J. Sheppard v. Equal Employment Opportunity Commission
05A10076
August 12, 2003
.
Andrew J. Sheppard,
Complainant,
v.
Cari M. Dominguez,
Chair,
Equal Employment Opportunity Commission,<1>
Agency.
Request No. 05A10076
Appeal No. 01A02919
Agency Nos. 0-97-00003-HQ, 0-97-00056-HQ, 0-98-00050-HQ
DENIAL OF REQUEST FOR RECONSIDERATION
On November 2, 2000, the agency timely initiated a request to the
Equal Employment Opportunity Commission (the Commission or EEOC)
to reconsider the decision in Andrew J. Sheppard v. Equal Employment
Opportunity Commission, EEOC Appeal No. 01A02919 (September 21, 2000).
EEOC regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision. 29 C.F.R. � 1614.405(b).
The party requesting reconsideration must submit written argument
or evidence which tends to establish one or more of the following
two criteria: the appellate decision involved a clearly erroneous
interpretation of material fact or law; or the decision will have a
substantial impact on the policies, practices or operations of the agency.
Id. For the reasons set forth herein, the agency's request is denied.
BACKGROUND
Complainant filed three separate complaints alleging unlawful employment
discrimination under Title VII of the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. � 2000e et seq. or the Equal Pay Act of
1963, as amended, 29 U.S.C. � 206(d) et seq. In the first complaint,
complainant alleged discrimination on the bases of race (African-American)
and sex (male) when he was not selected for the District Director
positions in Los Angeles, Atlanta, Philadelphia, or Detroit. In his
second filing, complainant contended that the agency paid the female
Regional Attorney for the Detroit District Office more than it paid
complainant, in violation of the Equal Pay Act. In the remaining
complaint, complainant alleged discrimination on the bases of race,
sex, and retaliation when he was not selected for the District Director
positions in Indianapolis or Birmingham.
After complainant requested a hearing on his claims, the complaints were
consolidated before an Administrative Judge (AJ). On November 24, 1999,
the AJ issued a summary judgment decision finding no discrimination
in any of complainant's claims. In his Findings and Conclusions, the
AJ also imposed sanctions upon complainant for failure to respond to
a Request for Admissions during discovery. Specifically, the AJ drew
an adverse inference that all requested information complainant refused
to provide would reflect unfavorably on complainant, and considered all
matters to which the requested information pertained to be established
in favor of the agency. The agency adopted the AJ's decision, and
complainant appealed.
In the previous decision, the Commission found the issuance of
sanctions against complainant improper, because the AJ never issued
complainant a written order to comply with the agency's discovery
request. The Commission acknowledged the AJ's issuance of a July
8, 1999 order regarding discovery issues, but noted that the order
never compelled complainant to comply with the Request for Admissions,
never set forth a time frame for compliance, and did not clarify what
sanctions may be imposed on complainant for failure to comply within
any particular time limit. When complainant's pretext arguments were
considered without the imposition of sanctions, the Commission found
that the recommending official's credibility regarding the reasons
for her selection recommendations was in genuine dispute. Therefore,
the Commission reasoned, summary judgment of the nonselection claims
was inappropriate. The Commission vacated the agency's final order with
regard to the nonselection claims, and remanded the issues for a hearing.
The Commission affirmed the agency's finding of no discrimination with
regard to the Equal Pay Act claim.
On request for reconsideration, the agency claims that complainant's
initial appeal was untimely. The agency argues that complainant failed
to file his initial appeal until February 7, 2000, not January 7, 2000,
as indicated in the previous decision. To support its argument, the
agency notes that the Commission's acknowledgment of appeal letter lists
the date of filing as February 7, 2000. It also contends that agency
personnel reviewed the Commission's record during the week of April 3,
2000, and found no documents in the record filed prior to February 7,
2000. The agency contends that absent �self serving statements� and
�bare assertions� from complainant, the record contains no proof that
complainant filed his notice of appeal on January 7, 2000. Further, the
agency notes that even if such a filing was made, no copy was provided
to the agency representative.
With respect to complainant's nonselections, the agency contends that
no genuine issue of material fact exists, even assuming that the AJ's
issuance of sanctions against complainant was improper. According to
the agency, the record contains sufficient evidence to support the
AJ's findings that complainant had engaged in unethical behavior,
that the recommending official was aware of complainant's conduct,
that this conduct adversely affected complainant's applications for
the District Director positions, and that the selected candidates held
superior qualifications.
In response, complainant, through his attorney, explains that he filed
his notice of appeal on January 7, 2000, and filed his brief in support
of appeal on February 7, 2000. Complainant notes that Commission
regulations do not provide for briefs in support of appeal to be filed
within thirty days of the date the parties receive acknowledgment of
the appeal, but rather require briefs to be filed within thirty days
of the date the notice of appeal is filed. With regard to substantive
issues, complainant argues that the recommending official's knowledge
of complainant's alleged misconduct at the time of the selections,
the method by which she gained this knowledge, and its influence on her
selection decisions is in dispute.
ANALYSIS
The agency correctly noted that the Commission's initial acknowledgment of
complainant's appeal identified the date of filing as February 7, 2000.
This filing date was based on the Commission's February 10, 2000 receipt
of a document entitled, �Appellant, Andrew Sheppard's Appeal of the
[Agency's] November 24, 1999 Final Agency Decision.� This document
arrived in an envelope postmarked February 7, 2000, but contained no
indication that it was a brief in support of a previously filed appeal,
as opposed to a notice of appeal.
The Commission cannot address what documents were contained in
the case file during the week of April 3, 2000; the file was not
reviewed by Commission appellate attorneys until the agency, after
multiple requests from the Commission, provided the complete case file.
When the file was complete, it was assigned to an attorney for review.
At that time, the record included a letter from complainant's attorney
entitled, �Complainant, Andrew J. Sheppard's Notice of Appeal of Agency
Final Order of December 7, 1999.� This notice arrived in an envelope
postmarked January 7, 2000, and clearly established the timeliness of
complainant's initial appeal. Therefore, as the final agency decision
was issued on December 7, 1999, complainant's appeal on January 7, 2000,
was clearly within the thirty-day time limit.
With regard to complainant's nonselection claims, the agency has
identified no new evidence or argument to obviate the need for a hearing.
The reasons behind the recommending official's selection recommendations
remain in genuine dispute, and should be subject to cross-examination.
Therefore, the agency's request for reconsideration is denied; the
Commission's initial appeal decision stands unaltered.
CONCLUSION
After a review of the agency's request for reconsideration, the previous
decision, and the entire record, the Commission finds that the agency's
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
of the Commission in Appeal No. 01A02919 is affirmed, and its order is
reprinted below. There is no further right of administrative appeal on
the decision of the Commission on a Request to Reconsider.
ORDER
The agency shall arrange for the assignment of an Administrative Judge
(AJ) to hold a hearing on the remanded claims in an expeditious manner.
The agency is directed to submit a copy of the complaint file to an
Administrative Judge within 15 calendar days of the date this decision
becomes final. The agency shall provide written notification of the
Compliance Offer at the address set forth herein that the complaint
file has been transmitted to the AJ. Thereafter, the AJ shall issue a
decision on the remanded claims in accordance with the regulation set
forth at 29 C.F.R. � 1614.109, and the agency shall issue a final action
in accordance with the regulation set forth at 29 C.F.R. � 1614.110.
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (Q0900)
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 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 (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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
August 12, 2003
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1In the instant matter, the Equal Employment Opportunity Commission is
both the respondent and the adjudicatory authority. The Commission's
adjudicatory function is separate and independent from those offices
charged with the in-house processing and resolution of discrimination
complaints. For the purposes of this decision, the term �Commission� or
�EEOC� is used when referring to the adjudicatory authority, and the term
�agency� is used when referring to the respondent party in this action.
The Chair has recused herself from participation in this decision.