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