EEOC Appeal No. 0720160013
08-08-2016
Candance C. v. Gen. Serv. Admin.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Candance C,1
Complainant,
v.
Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.
Appeal No. 0720160013
Hearing No. 410-2014-00296X
Agency No. GSA-13-R4-P-0053
DECISION
Concurrent with its December 21, 2015, final order, the Agency filed a timely appeal which the Commission accepts pursuant to 29 C.F.R. � 1614.405(a). On appeal, the Agency requests that the Commission affirm its rejection of an Equal Employment Opportunity Commission Administrative Judge's (AJ) finding of discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Agency also requests that the Commission affirm its rejection of the relief ordered by the AJ. For the following reasons, the Commission REVERSES the Agency's final order and REMANDS the complaint for further action by the Agency.
ISSUE PRESENTED
The issue presented is whether the Administrative Judge properly imposed a default judgment on the Agency as a sanction for its actions in the processing of Complainant's complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lease Management Technician on the Agency's Leasing Division in Atlanta, Georgia.
On May 25, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (Caucasian), sex (female), disability (physical), and age (57) when:
1. She was not selected for a Leasing Specialist position advertised under Vacancy Announcement 1304001LLMP;
2. She was denied numerous training opportunities by her supervisor with the last denial occurring on January 14, 2013;
3. Her supervisor denied her leave request on February 26, 2013;
4. Management told her that she was not wanted in the work unit and should look for other work, she was allegedly assigned "demeaning tasks," and management insulted her by telling her that she received the lowest rating in a merit promotion package;
5. She was subjected to harassment when the following occurred:
a. She made a request to the Office of Human Resources for a debriefing when she was not selected for the Leasing Specialist position advertised under Vacancy Announcement 1304001LLMP, and none of the Selection Panel or documents you requested were present. She only met with the Deputy Director and a Staffing Specialist on January 10, 2013;
b. While speaking with another employee about a vacancy announcement, the Section Chief allegedly shouted across work stations to ask Complainant, "how high can you go in your position series?" and commented that the Co Op can obtain a higher grade status and she would have to go outside of the office to get a promotion on January 28, 2013;
c. A supervisor who is no longer Complainant's supervisor allegedly stated that he had a sound working relationship with an employee Complainant categorizes as "Brown/Black African American male" and said if Complainant would conduct herself more like that employee she might be able to experience more of the exchange and supportive work environment she preferred in March 2011; and
d. She spoke with the Director of Human Resources about missing documentation referencing her employment and disability status. Complainant stated that the "paperwork was eventually reported as recovered" on August 28, 2008.
6. Her supervisor:
a. Treated her in a manner which was "unprofessional, public practices" and verbal condescension in front of her peers on February 13, 2013;
b. Confronted her at the office door upon her return from a meeting and allegedly stated she "saw, read, and was aware of everything," especially Complainant's email on February 14, 2013;
c. Stated she "looked bad" at her monthly meeting with Upper Management because she had no updates from Complainant on assignment areas on February 18, 2013;
d. Made loud, disparaging remarks regarding her professional approach, work, and lease reconciliation strategy; and
e. Arranged a meeting to discuss Complainant's assignment status while away on a detail and allegedly stated whatever she "dumped" as far as job responsibilities would remain at her return, apologized to a Co Op Complainant categorizes as "Black or Brown African American male" and allegedly stated "he does not have to do anything [Complainant] had been responsible for."
The Agency dismissed claims 4, 5, and 6 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency asked Complainant for clarification regarding claim 2 and subsequently dismissed Complainant's claim of being denied numerous training opportunities dating back to 2007 pursuant to 29 C.F.R. � 1614.107(a)(2) as untimely. The Agency accepted the denial of a training opportunity on January 14, 2013, for investigation.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing. On September 11, 2014, the AJ assigned to the case (AJ1) sent an Order Directing Agency to Produce Complaint File to the Agency. The Agency failed to respond to the order. On November 20, 2014, AJ1 issued an Order to Show Cause to the Agency for failing to produce the complaint file. The Agency failed to respond to the order. On January 13, 2015, the case was reassigned to another AJ (AJ2). On January 26, 2015, Complainant filed a Motion for Default Judgment or Other Sanction. The Agency failed to respond to or oppose Complainant's motion, but the Agency subsequently forwarded the complaint file to the AJ on February 9, 2015.
On May 8, 2015, AJ2 issued an order of Default Judgment and an Order to Complainant to Submit Damages Evidence. AJ2 found that a default judgment in Complainant's favor on claims 1, 2, and 3 was warranted because the Agency repeatedly disregarded the AJs' orders and the Agency failed to respond to or oppose Complainant's motion for sanctions.
Pursuant to her finding for Complainant, AJ2 awarded damages to Complainant. She awarded attorney's fees and costs in the amount of $13,050.23. She awarded Complainant $25,000 in non-pecuniary damages. AJ2 calculated that Complainant was entitled to a back pay award of $24,099.70, including interest. AJ2 also ordered the Agency to provide EEO training to the responsible management officials and to post a notice of a finding of discrimination at the Agency's Atlanta, Georgia facility.
On December 21, 2015, the Agency issued a final order in which it rejected the AJ's decision and concurrently filed an appeal with the Commission.
CONTENTIONS ON APPEAL
On appeal, the Agency objects to AJ2's decision to issue a default judgment in favor of Complainant. According to the Agency, "[d]ue to a mail room issue," the Agency had no notice of the AJs' orders or Complainant's motion, which is why the Agency failed to file any responses. The Agency states that all mail addressed to the Regional EEO Specialist was not forwarded to the appropriate parties from July 25, 2014, the date when the Regional EEO Specialist left employment with the Agency, until February 2015. According to the Agency, the Regional EEO Specialist was the point of contact for all EEO-related mailings and ensured that documents were provided to the appropriate division. The Agency contends that the mail room issue is good cause for failing to comply with the AJs' orders. The Agency maintains that it has worked with the mail room "to ensure that this does not occur again."
The Agency argues that the issuance of a default judgment was grossly disproportionate to the violation of the order to produce the complaint file and the order to show cause and constitutes an abuse of discretion. The Agency also partly blames AJ1 for any delay because AJ1 did not issue the order to produce the complaint file until September 2014, which was five months after Complainant requested a hearing in March 2014.
In response, Complainant contends that the Agency had time to respond to her motion for default judgment between February 2015 and May 2015, yet failed to do so. According to Complainant, the Agency never raised the mail room issue to AJ2 or submitted a request to reconsideration to AJ2 after AJ2 imposed default judgment on the Agency as a sanction. Complainant argues that the Agency cannot claim an abuse of discretion with respect to issues that were not before AJ2. Complainant also notes that the Agency has not presented any evidence in support of the claimed mail room issue. Finally, Complainant contends that the damages awarded by AJ2 were appropriate.
ANALYSIS AND FINDINGS
Review of the AJ Decision
The Commission's regulations afford broad authority to AJs for the conduct of hearings. See 29 C.F.R. � 1614.109 et seq.; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 7, Sec. III(D) (Aug. 5, 2015). An AJ has inherent powers to conduct a hearing and to issue appropriate sanctions, including a default judgment. See id.; Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (April 21, 2005); Rountree v. Dep't of the Treasury, EEOC Appeal No. 07A00015 (July 17, 2001).
Specifically, our regulations provide that where a party, inter alia, fails to respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. � 1614.109(f)(3), i.e., an AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the non-complying party; (2) consider the requested information to be established in favor of the opposing party, (3) exclude other evidence offered by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party (emphasis added); or (5) take other action deemed appropriate, e.g., payment of costs and expenses by the non-complying party. Id. Before taking any of the actions authorized by the Commission's regulations, an AJ must first issue a Notice to Show Cause to the non-complying party. Management Directive for 29 C.F.R. Part 1614 (MD-110), Ch. 7, Sec. III(D), fn. 7; see DaCosta v. Dep't of Education, EEOC Appeal No. 01995992 (Feb. 25, 2000).
Having reviewed the matter, we find that the AJ2's decision to sanction the Agency was proper. AJ1's Order of September 11, 2014, clearly ordered the Agency to provide the complaint file within 15 days of its receipt of the Order. The September 11, 2014, Order also put the Agency on notice that sanctions may be imposed for failure to comply, absent good cause shown. AJ1's November 20, 2014, Order to Show Cause again ordered the Agency to provide the complaint file within 15 days of its receipt of the Order. The Agency did not mail the complaint file until February 9, 2015, and, between February 9, 2015, and May 8, 2015, the Agency did not demonstrate good cause or provide any reason or explanation for the delay. AJ2 determined that a sanction was appropriate.
Determination of the Sanction
In general, the Commission has held that sanctions, while corrective, also act to prevent similar misconduct in the future and must be tailored to each situation, applying the least severe sanction necessary to respond to the party's failure to show good cause for its actions, as well as to equitably remedy the opposing party. See Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007); Rountree v. Dep't of the Treasury, supra; Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). The Commission's interest lies in deterring the underlying conduct of the non-complying party, and protecting its administrative process from abuse by either party to insure that agencies, as well as complainants, abide by its regulations. See Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009).
The factors pertinent to "tailoring" a sanction, or determining whether a sanction is, in fact, warranted, include: (1) the extent and nature of the non-compliance, including 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, if any; and (4) the effect on the integrity of the EEO process. Gray v. Dep.t of Defense, supra; Voysest v. Social Security Admin., EEOC Appeal No. 01A35340 (Jan. 18, 2005); Royal v. Dept. of Veterans Affairs, supra.
We conclude that the default judgment in Complainant's favor was not an abuse of discretion for the reasons which follow. Default judgment is an appropriate sanction for the infraction, the failure to comply with AJ1's orders for months. In other appeals of default judgments issued by AJs for failure to comply with the requirements of the 29 C.F.R. Part 1614 process, the Commission has affirmed the default judgments, in the interest of protecting the integrity of the EEO process. See ****, Complainant, v. Dep't of the Air Force, EEOC Appeal No. 0720090009 (June 5, 2015); Royal v. Dep't of Veterans Affairs, supra; Reading v. Dep't of Veterans Affairs, EEOC Appeal No. 07A40125 (Oct. 12, 2006); Lomax v. Dep't of Veterans Affairs, EEOC Appeal No. 0720070039 (Oct. 2, 2007), req. for recon. den., EEOC Request No. 0520080115 (Dec. 26, 2007); Elston v. Dep't of Transportation, EEOC Appeal No. 07A50019 (Oct. 18, 2005), req. for recon. den., EEOC Request No. 05A60283 (Jan. 5, 2006); Rhinesmith v. Dep't of the Treasury, EEOC Appeal No. 07A10103 (Jan. 28, 2003), req. for recon. den., EEOC Request No. 05A30509 (May 13, 2003).
Moreover, we note that Complainant established a prima facie case of discrimination with respect to claims 1, 2, and 3. For example, with respect to her nonselection for the Leasing Specialist position, the record establishes that Complainant was not selected because she performed poorly on her interview, and Complainant alleges that she performed poorly in the interview because she was denied a reasonable accommodation for her disability, which causes short-term memory issues, when she was not allowed to bring her notecards with statutory section numbers to the interview to refresh her memory. Accordingly, it was not an abuse of discretion for AJ2 to draw an adverse inference that the information in the complaint file would have reflected unfavorably on the Agency and enter a default judgment in favor of Complainant.
On appeal, the Agency contends that it has shown good cause for failing to comply with the AJs' orders. However, the Agency failed to proffer an explanation for its inaction and did not concede its negligence until appeal. The Agency should have raised the alleged mail room issue between February 2015, when the mail room issue was resolved, and May 2015, when AJ2 issued the default judgment, rather than after the fact on appeal.2 Accordingly, based on the information AJ2 had when she issued her decision, we find that she did not abuse her discretion in sanctioning the Agency by entering a decision fully in Complainant's favor. See 29 C.F.R. � 1614.108(f)(3)(v); Rhinesmith v. Dep't of the Treasury, supra. We find that the sanction of a default judgment was appropriately tailored by AJ2 to impress upon the Agency the need to comply with AJ Orders, as well as the relevant timeframes of the EEO process.
Remedy Following Default Judgment
Complainant's attorney submitted a fee petition for $14,050.23 in attorney's fees. AJ2 reduced the award by $1,000.00 based on time spent working on claims that were dismissed by the Agency. AJ2 found that an award of $25,000 in non-pecuniary compensatory damages would be consistent with other awards issued by the Commission in similar cases. AJ2 determined that Complainant was entitled to back pay from the date of her non-selection to the date of her retirement. AJ2 found that Complainant was entitled to a back pay award of $24,099.70, including interest. Additionally, AJ2 ordered the Agency to provide EEO training to the responsible management officials and to post a notice of a finding of discrimination at the Atlanta, Georgia facility.
Neither of the parties contested the AJ's award of non-pecuniary damages, back pay, or attorney's fees or the other remedies ordered. As such, we decline to review the award and affirm AJ2's awards of the above without comment. We note that Complainant is entitled to an additional attorney's fees award for the work performed in the course of this appeal.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the Administrative Judge properly imposed a default judgment on the Agency as a sanction for its actions in the processing of Complainant's complaint and find that the remedies ordered by the AJ should be affirmed. Therefore, we REVERSE the Agency's final order and REMAND the complaint to the Agency for further processing.
ORDER
Within one hundred and twenty (120) days of the date this decision becomes final, the Agency shall:
1. Pay Complainant $25,000.00 in non-pecuniary damages;
2. Pay Complainant $24,099.70, including interest, in back pay damages;
3. Pay Complainant's attorney of record $13,050.23 in attorney's fees;
4. Provide eight (8) hours of EEO training to the responsible management officials involved in this matter;
5. Post a notice in accordance with the paragraph below.
The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented.
POSTING ORDER (G0914)
The Agency is ordered to post at its Atlanta, Georgia facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0610)
If Complainant has been represented by an attorney (as defined by 29 C.F.R. � 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. � 1614.501.
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 (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (T0610)
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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
8-8-2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Additionally, we note that we have held that mail room issues do not constitute good cause for not complying with an AJ's order. See ***, Complainant, v. Dep't of the Air Force, supra (affirming a default judgment where a complaint file was postmarked one day after the deadline for the Agency to mail it pursuant to an AJ's order due to a mail room issue).
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