Bert F. Kelley, Jr., Complainant,v.Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.

Equal Employment Opportunity CommissionMar 23, 2005
01a45412 (E.E.O.C. Mar. 23, 2005)

01a45412

03-23-2005

Bert F. Kelley, Jr., Complainant, v. Donald H. Rumsfeld, Secretary, Department of Defense, (Defense Commissary Agency), Agency.


Bert F. Kelley, Jr. v. Department of Defense (Defense Commissary Agency)

01A45412

March 23, 2005

.

Bert F. Kelley, Jr.,

Complainant,

v.

Donald H. Rumsfeld,

Secretary,

Department of Defense,

(Defense Commissary Agency),

Agency.

Appeal No. 01A45412

Agency No. 03DCMSKG001

Hearing No. 130-2004-00065X

DECISION

Complainant appeals to the Commission from the agency's decision dated

July 6, 2004, finding no discrimination. In his complaint, complainant,

a Teller, GS-0530-04, alleged discrimination based on sex (male) when

on February 4, 2003, he became aware of his non-selection for promotion

to the position of Supervisory Sales Store Checker, GS-2091-06. At the

conclusion of the investigation, complainant requested a hearing before an

EEOC Administrative Judge (AJ). The record indicates that on February 20,

2004, the AJ issued the parties a scheduling order to provide, in addition

to other things, a proposed findings of facts and conclusions of law, an

itemized list of damages, including compensatory damages, a list of the

witnesses, any objections to the issuance of decision without a hearing,

and an outline of the facts which warrant a decision being issued in

complainant's favor. Therein, complainant was also informed that his

failure to comply with the order may result in a remand of the case

for a final decision, imposition of the adverse inference rule, and/or

sanctions. When complainant failed to comply with the scheduling order,

the AJ issued a notice on June 16, 2004, returning the case back to the

agency for a final decision without the hearing, as a sanction pursuant

to 29 C.F.R. � 1614.109(f)(3)(v). Per the AJ's notice, the agency issued

a final decision in which it found no discrimination. The agency, in its

decision, concluded that it articulated legitimate and nondiscriminatory

reasons for the selection determination. Complainant appealed.

The Commission notes that the Administrative Judge's authority to issue

sanctions is set forth at 29 C.F.R. � 1614.109(f)(3). In appropriate

circumstances, an Administrative Judge may sanction a party for

its conduct. 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). Administrative Judges must distinguish between conduct that

does not warrant the imposition of a sanction and conduct which does.

The Commission has held that the AJ properly sanctioned complainant by

remanding his case to the agency for the issuance of an agency decision

when complainant failed to comply with the AJ's orders to provide a

position statement, witness list, and response to the agency's motion for

a decision without a hearing. See Martin Hayes v. United States Postal

Service, EEOC Request No. 05A20689 (January 31, 2003). In this case,

since complainant failed to comply with the AJ's scheduling order to

provide a proposed findings of facts and conclusions of law, witness list,

and a list of damages, the Commission finds that the AJ's returning of the

case back to the agency for a final decision without a hearing was proper.

On appeal, complainant does not contest the AJ's remand.

Assuming arguendo that complainant had established a prima facie case

of discrimination, the Commission finds that the agency has articulated

legitimate, nondiscriminatory reasons for the denial of complainant's

transfer request. Specifically, the selecting official stated that

she did not select complainant for several reasons. The selecting

official, specifically, cited concerns about complainant's reliability

and dependability based on numerous incidents prior to the selection.

She, specifically, noted complainant's failure to follow her instructions

pertaining to obtaining change and an incident pertaining to taking care

of a discrepancy with food stamps. She also had to give complainant a

direct order to sign and return a letter of concern she had given him

because he had failed to do so when requested. Also, complainant had

come in and worked on his own time and worked over time, but failed

to annotate the timesheet as he had been instructed to do. The record

contains a copy of four letters of concern describing the above incidents.

After a review of the record, the Commission also finds that complainant

failed to show that the agency's reasons were pretext for discrimination.

Complainant has not shown that his qualifications were superior to the

selectee's qualifications for the position. The Commission finds that

complainant failed to show, by a preponderance of the evidence, that he

was discriminated against on the basis of sex.

The agency's decision finding no discrimination is AFFIRMED.

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

March 23, 2005

__________________

Date