0120132940
09-04-2015
Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0120132940
Hearing No. 410-2013-00062X
Agency No. 11-67004-01416
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 29, 2013, dismissing his complaint of unlawful 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant applied for the position of Facility Operations Specialist with the Agency's Marine Corps Logistics Base in Albany, Georgia.
On May 5, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (African-American) when he was not referred for the position in question on Internal Certificate SE8-GS1640-12-MR057774-I-IN12.
The complaint was investigated. Following the investigation, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). The parties were to engage in discovery. On November 20, 2012, the Agency submitted its discovery request on Complainant. Complainant failed to respond to the Agency. On January 15, 2013, Complainant and the Agency's counsel discussed the matter and he submitted his responses on January 23, 2013. A review of the responses show that Complainant failed to provide the documents or admissions as requested. In addition, Complainant was non-responsive to interrogatories. By motion dated February 25, 2013, the Agency moved to have the AJ compel Complainant to respond and requested that the matter be dismissed from the hearing as a sanction. The AJ granted the Agency's motion to compel on March 11, 2013. On March 21, 2013, Complainant provided a one page response to the AJ stating, in essence, he would not comply with the order. On April 8, 2013, the Agency moved again for sanctions against Complainant. Specifically, the Agency asked that the AJ deny Complainant's request for a hearing. Complainant did not respond to the Agency's motion. On June 10, 2013, the AJ dismissed the hearing and remanded the complaint to the Agency for a final decision.
In its July 29, 2013 decision, the Agency chose to implement the AJ's decision as its final action. As such, the Agency dismissed the complaint and provided Complainant with appeal rights.
This appeal followed. Complainant appealed arguing that he has been with the federal government for a number of years and should have been qualified for the position in question. The Agency requested that the Commission affirm its final action.
ANALYSIS AND FINDINGS
As an initial matter, an AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3). The sanctions available to an AJ for failure to provide requested relevant information include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party. See Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). These sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. 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. If a lesser sanction would serve this purpose, an AJ may be abusing his or her discretion to impose a harsher sanction. Dismissal of a complaint by an AJ as a sanction is only appropriate in extreme circumstances, where the complainant has engaged in contumacious conduct, not simple negligence. See Thomas v. Dep't of Transp., EEOC Appeal No. 01870232 (Mar. 4, 1988).
The Commission finds that the AJ properly sanctioned Complainant by removing his right to a hearing given that Complainant failed to engage in discovery and to respond to the AJ's orders. The AJ properly remanded the matter to the Agency for issuance of a decision. It should be noted that the AJ granted the Agency's motion to deny the hearing, not to dismiss the complaint. Based on the facts of this case, the Commission determines that it is appropriate to reverse the Agency's dismissal and remand the complaint for issuance of a new final decision by the Agency addressing the merits of the complaint. See Fuller v. Dep't. of the Army, EEOC Appeal No. 0120113807 (Nov. 5, 2012).
CONCLUSION
Accordingly the Agency's decision dismissing the complaint is REVERSED and the matter is remanded as set forth below.
ORDER
The Agency is ordered to take the following action:
Within 45 days of the date this decision becomes final, the Agency shall issue a new final Agency decision addressing the merits of Complainant's complaint.
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 (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 Complainants 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
September 4, 2015
__________________
Date
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