0120113053
09-17-2014
Complainant, v. Chuck Hagel, Secretary, Department of Defense, Agency.
Complainant,
v.
Chuck Hagel,
Secretary,
Department of Defense,
Agency.
Appeal No. 0120113053
Hearing No. 570-2009-00719X
Agency No. EU-FY09-085
DECISION
On June 7, 2011, Complainant filed an appeal from the Agency's May 13, 2011 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 deems this appeal as timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Teacher at the Agency's Ramstein High School in Ramstein, Germany.
Complainant contacted an EEO counselor and filed a formal EEO complaint on September 29, 2008, alleging that the Agency discriminated against him on the bases of national origin (Hispanic), sex (male), and age (57) when:
1. on August 26, 2008, Complainant became aware that he was not selected for the position of Instructional Systems Specialist (Foreign Languages), as advertised in Vacancy Announcement Number 08DR0016EACS307423A; and
2. on August 26, 2008, Complainant became aware that he was not selected for the position of Health Education Teacher (Distance Learning), as advertised in Vacancy Announcement Number DLC-08-01.
At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). Following discovery, the Agency moved for summary judgment on January 14, 2010. Complainant filed his opposition to the Agency's motion on January 28, 2010. The Agency then submitted its response to Complainant's opposition on February 23, 2010. Complainant provided the AJ a supplemental memorandum on July 8, 2010.
The AJ issued a decision by summary judgment in favor of the Agency, concluding no discrimination had been proven. The AJ incorporated by reference the background provided by the parties in their motions described above. The AJ concluded that the Agency provided legitimate, nondiscriminatory reasons for the selections made for the two positions, and that Complainant failed to prove that the Agency's reasons constituted pretext for unlawful discrimination. The Agency's final action implemented the AJ's decision.
This appeal followed on June 7, 2011. By letter dated June 21, 2011, EEOC's Office of Federal Operations (OFO) notified the Agency of the filing and that it was required to submit a copy of the entire complaint file within thirty (30) calendar days of the Agency's receipt of the letter of notification. The June 21, 2011 letter advised the Agency that failure to submit the entire complaint file within the specified time frame could result in the Commission drawing an adverse inference. The Agency filed a brief in response to the appeal on August 5, 2011, but did not submit the complete complaint file.
On July 10, 2014, OFO issued a Notice to Show Cause (Notice) informing the Agency that OFO had not received the complete complaint file. The Notice specifically requested that the Agency provide the following missing items:
1. The entire complaint file
2. All motions, pleadings, correspondence, etc. generated during the hearing process
3. The decision issued by the Administrative Judge
By letter dated July 23, 2014, the Agency responded to the Notice. The Agency provided what it purported to be the complete file. The Agency asserted that it was not aware of Complainant's appeal or the request for the complaint file.
ANALYSIS AND FINDINGS
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.
As noted above, upon receipt of this appeal, OFO sent the Agency a letter 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 failed to comply with this request. We also note that the Agency provided a brief in response to Complainant's appeal by fax dated August 5, 2011.
On July 10, 2014, OFO issued the Notice again requesting the entire complaint file, all motions, pleadings, correspondence, etc. generated during the hearing process, and the AJ's decision. 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 thirty (30) 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 responded stating it was not aware of the appeal. We are not convinced by the Agency's assertion that it was not aware of the appeal filed by Complainant in light of the fact that the Agency provided a brief in 2011 in response to Complainant's appeal. The Agency purported to have provided the Commission with complete record. However, a review of the record provided by the Agency revealed that it failed to do so. Specifically, the hearing record, including all discovery, motions, or other documents generated by the hearing process, were not provided by the Agency. 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. Based on the Agency's repeated failure to submit the complete record, the imposition of sanctions is warranted. Vu v. Social Sec. Admin., EEOC Appeal No. 0120072632 (Jan. 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, we find that the Agency failed to comply with the Commission's request to submit the entire record. We are 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 Sec. Admin., EEOC Appeal No. 0120072632 (Jan. 20, 2011); Shehata v. Dep't of Veterans Affairs, EEOC Appeal No. 0120102315 (May 9, 2012).
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
ORDER
The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the EEOC's Washington, D.C. 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 17, 2014
__________________
Date
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0120113053
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113053