EEOC Appeal No. 0120083446
09-28-2015
Complainant v. Dep't of the Air Force
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Deborah Lee James,
Secretary,
Department of the Air Force
(National Guard Bureau),
Agency.
Appeal No. 0120083446
Hearing No. 530-2007-00178X
Agency No. T0385DEF0106A
DECISION
On August 1, 2008, Complainant filed an appeal from the Agency's final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission REVERSES the Agency's final order.
ISSUE PRESENTED
Should the Agency be sanctioned for failing to comply with numerous Commission Orders to produce missing documentation from the record? If so, what is an appropriate sanction for the Agency's behavior?
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a WG-12 Aircraft Mechanic, dual-status technician, with the Delaware Air Force National Guard 166th Maintenance Squadron at the New Castle Air National Guard Base in New Castle, Delaware.
On December 21, 2005, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the basis of age (55) when, on or about November 6, 2005, he was not selected for the position of Aircraft Mechanic Supervisor, WS-8852-10, under vacancy announcement number 63-05.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, which the AJ held on May 29, 2008. The AJ issued a bench decision on July 22, 2008, finding that Complainant did not establish that discrimination existed as alleged. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. Complainant subsequently filed this appeal.
CONTENTIONS ON APPEAL
In support of the appeal, Complainant contends that the Agency failed to amend his complaint to include an allegation of religious discrimination, despite his numerous attempts to request that religion be included as a basis both with the Agency and the AJ. Complainant contends that the AJ erred when she refused to allow any of his witnesses to testify during the hearing, particularly with regard to ageist comments made by a selecting official. Complainant contends that the AJ erred in many of her factual determinations, and that her decision was not supported by evidence in the record. Complainant contends that the AJ erred in her credibility determinations, as there were many inconsistencies in the witnesses' testimony and in the record. Complainant contends that the selectee for the position was not qualified when he was selected for the position as evidenced by a "waiver of required technical and educational training" that was made after the selectee was selected for the position, which could be found in the record. Complainant contends that his qualifications were observably superior to the qualifications of the selectee, and that the evidence in the record establishes that he was not selected for the position because of his age and his religion.
In opposition to the appeal, the Agency contends that, although Complainant established a prima facie case of discrimination, it articulated legitimate, nondiscriminatory reasons for its actions, and that Complainant failed to establish that those reasons were a pretext for discrimination.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 9, at � VI.B. (Aug. 5, 2015).
We note that, by letter dated August 7, 2008, we notified the Agency of the filing of this complaint 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 August 7, 2008, 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. On January 30, 2009, the Agency submitted some documentation; however, much of the record was missing. Specifically, the record submitted to us by the Agency was missing the complete report of investigation, including all of the affidavits from all of the witnesses, the "fact-finding conference" documentation, including the testimony of all of the witnesses, resumes and applications of all of the applicants for this position, and the interview notes. Further, the record was devoid of motions, pleadings, and correspondence generated during the hearing process, including motions for summary judgment, motions to amend the complaint, discovery materials, and hearing exhibits. Critically, the record did not contain the transcript of the hearing that was held on May 29, 2008.
The Commission further contacted the Agency and requested the specific missing documentation via e-mail and telephone on July 22, 2010, June 20, 2012, August 6, 2012, and August 30, 2012. The Agency submitted some documentation on September 10, 2012, but much of it was the same documentation previously submitted, and did not contain any of the documents that the Commission requested.
On April 11, 2014, the Commission issued to the Agency a Notice to Show Good Cause Why Sanctions Should Not Be Imposed. The Notice described the Commission's attempts to gather the missing documentation and specifically described the documents that were missing from the file. We ordered the Agency to show good cause why it has not submitted the complete complaint file in this matter. The Notice clearly notified the Agency that if it failed to submit the entire record in twenty (20) days or show good cause why it cannot do so, OFO might: (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 never responded to the Notice, including a follow-up telephone call placed on July 14, 2014, to the Agency's EEO office to ensure that it had received the Notice.
Upon review of the record, we find that the record before us is not the same record presented to the AJ. The record submitted by the Agency is missing the complete report of investigation, affidavits from the witnesses, the "fact-finding conference" documentation, including the testimony of all of the witnesses, resumes and applications of all of the applicants for this position, interview notes, all of the motions, pleadings, and correspondence generated during the hearing process, motions to amend the complaint, discovery materials, hearing exhibits, and the transcript of the hearing that was held on May 29, 2008.
Based on the conduct of the Agency in this case and its failure to show good cause for why sanctions should not be imposed, we find that the imposition of sanctions is warranted. The Commission repeatedly requested the complete complaint file and hearing file from the Agency. The Agency was on notice that sanctions were possible if the Agency failed to comply. The Agency failed to submit the documentation requested and, consequently, significantly delayed our ability to issue a decision in this appeal. See Vu v. Social Security Administration, EEOC Appeal No. 0120072632 (Jan.20, 2011); Chattopadhyay v. Dep't of Health and Human Services, EEOC Appeal No. 0120081177 (Sept. 28, 2012); Chattopadhyay v. Dep't of Health and Human Services, EEOC Appeal No. 0120091142 (Sept. 28, 2012).
Sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. Vu, supra. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. Id. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, it may be an abuse of discretion to impose a harsher sanction. See Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007); Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). Factors pertinent to "tailoring" a sanction, or determining whether a sanction is, in fact, warranted, would necessarily include the extent and nature of the non-compliance, to include the justification presented by the non-complying party; the prejudicial effect of the non-compliance on the opposing party; the consequences resulting from the delay in justice, if any; and, the effect on the integrity of the EEO process. Id.
Based on the record before us, we find that the AJ's determinations of fact and credibility determinations are not supported by substantial evidence in the record. There are no documents in the record supplied to us to support the AJ's conclusions. Additionally, many of the AJ's findings of fact are vague and she refers generally to the report of investigation, the interview notes, the affidavits, documents from the fact-finding conference, or the hearing transcript. Since we cannot refer to any of those documents, we cannot find that the AJ's conclusions and her ultimate decision are supported by the record.
As a result, we issue a default judgment in favor of Complainant. We note that this default judgment is supported by the record that was supplied to us. For example, Complainant alleged in his formal complaint that the selecting official in this complaint continuously told Complainant every time he applied for a promotion that "war is a young man's game" and that he wanted young men for any open supervisory positions. Complainant alleged that these statements were made in front of witnesses, and that he could produce three witnesses who would attest to hearing these statements. The Agency did not provide us with witness affidavits, and it is unclear from the record why the AJ denied all of Complainant's witnesses and allowed only Agency witnesses to testify at the hearing. We also do not have the hearing transcript to review the selecting official's explanation of those statements. Drawing an adverse inference that these documents would have revealed that discriminatory animus existed related to Complainant's age, we find that Complainant established that he was discriminated against on the basis of age when he was not selected for the position.
We also find that the record supplied to us supports a finding of religious discrimination. On the formal complaint form signed by Complainant and dated December 21, 2005, Complainant wrote "Quaker" next to the religion box; however, there is no indication in the Agency's February 1, 2006, Notice of Acceptance why the Agency did not process Complainant's claim of religious discrimination. It does not appear that Complainant abandoned this claim, as the record contains a letter dated March 10, 2007, from Complainant to the Agency's EEO Office in which he alleged that the Agency had considered religion in the selection decision. There is no indication in the record before us that the Agency made any efforts to amend this complaint in conformance with EEOC regulation 29 C.F.R. � 1614.106(d). See Sheehy v. National Security Agency, EEOC Request No. 0520100403 (Feb. 27, 2012) (where complainant mentioned in documents to agency that she believed age was a basis of discrimination, agency erred when it did not amend complaint while complaint was pending). Based on the record before us, we find that the Agency erred when it did not amend the complaint to include religion as a basis of discrimination.
There is evidence in the record before us that supports Complainant's allegation that his religion played a role in the non-selection. Specifically, Complainant alleged that one of the selecting officials provided all of the other selecting officials with Complainant's religious information and related purported conscientious objector status1 during the selection process. This allegation is supported by information in the EEO Counselor's Report. The EEO Counselor stated that Complainant's Commander, a Lieutenant Colonel and one of the selecting officials for the position at issue, told the EEO Counselor that Complainant "was not the best choice ... because he is a conscientious objector." EEO Counselor's Report at 4. Because we do not have the hearing transcript, we cannot know whether this allegation was addressed during the hearing. We also do not have affidavits or interview notes from the selecting officials to determine whether they referred to Complainant's religion or purported conscientious objector status as a reason for his non-selection. Drawing an adverse inference that these documents would have revealed discriminatory animus existed related to Complainant's religion, we find that Complainant established that his religion was taken into consideration when the Agency did not select him for the position.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we REVERSE the Agency's final order, and issue a default judgment in favor of Complainant. We REMAND the complaint for further proceedings consistent with this decision and the Order of the Commission, below.
ORDER
The Agency is hereby ORDERED to take the following actions:
1. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency shall offer Complainant the position of Aircraft Mechanic Supervisor, WS-8852-10, or a substantially equivalent position, retroactive to the effective date that the selectee encumbered the position. Complainant will have fifteen (15) days to accept or decline the position, and he must do so in writing. Should Complainant decline the position, his entitlement to back pay shall cease as of the date on which he declines.
2. Within one hundred and twenty (120) days from the date this decision becomes final, the Agency must pay Complainant civilian back pay and benefits, with interest, including intervening step increases Complainant may have lost, retroactive to the date the selectee encumbered the position. All back pay calculations should be computed in accordance with 5 C.F.R. � 550.805. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay, the Agency shall issue a check to Complainant for the undisputed amount within 60 calendar days of the date the Agency determines the amount it believes to be due. Complainant may petition for enforcement or clarification of the amount in dispute. We note that this back pay order applies only to civilian back pay.
3. The Agency shall conduct a supplemental investigation into Complainant's compensatory damages. The Complainant shall cooperate in the Agency's efforts to compute the compensatory damages, and shall provide all relevant information requested by the Agency. Within (60) calendar days of the Agency's receipt of Complainant's compensatory damages evidence, the Agency shall issue a final decision addressing the issues of compensatory damages. The Agency shall submit a copy of the final decision to the Commission's Compliance Officer.
4. Within 120 (one hundred and twenty) days of the date of this decision, the Agency shall consider taking appropriate disciplinary action against the selecting officials in this complaint. The Commission does not consider training to be disciplinary action. The Agency shall report its decision to the compliance officer. If the Agency decides to take disciplinary action, it shall identify the action taken. If the Agency decides not to take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If the responsible management officials have left the Agency's employment, the Agency shall furnish documentation of their departure dates.
5. Within 120 (one hundred and twenty) days of the date of this decision, the Agency shall identify and provide a minimum of eight (8) hours of in-person EEO training to those individuals who serve on interview panels or as selecting officials for civilian positions or dual-status civilian positions within the Agency's Delaware National Guard, with an emphasis on management's responsibilities to prevent unlawful discrimination under federal anti-discrimination statutes.
6. The Agency shall evaluate the policy, process, and practice it uses to maintain official EEO records, including but not limited to the complaint file and hearing record. It shall also evaluate the policy, process, and practice it uses to supply the record to the Commission and to reply to Commission inquiries and Orders. Within one hundred and eighty (180) days of the date of this decision the Agency shall submit a report to the Compliance Officer describing its policy, process, and practice with regard to these issues, and what steps it has taken to address any deficiencies.
7. The Agency shall post the attached notice, as prescribed in the Posting Notice Order below.
The Agency shall provide a report of compliance with this order to the Commission's Compliance Office. Copies must also be sent to Complainant and his representative.
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.
POSTING ORDER (G0914)
The Agency is ordered to post throughout the New Castle Air National Guard Base 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)), he 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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, Director
Office of Federal Operations
__________________
Date
1 Complainant contends that he is not in fact a conscientious objector, but the selecting officials assumed he was because of his Quaker religion.
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