0120150234
03-02-2017
Kerrie F.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Department of Defense Education Activity), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Kerrie F.,1
Complainant,
v.
James N. Mattis,
Secretary,
Department of Defense
(Department of Defense Education Activity),
Agency.
Appeal No. 0120150234
Hearing No. 410-2013-00177X
Agency No. DDFY12100
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final order dated June 27, 2014, dismissing her 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. For the reasons stated below, the final order is VACATED and Complainant's complaint is REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ISSUES PRESENTED
The issues presented are whether the Equal Employment Opportunity Commission Administrative Judge (AJ) abused his discretion by dismissing Complainant's hearing request; and whether the Agency fully complied with its final order that adopted the AJ's decision that dismissed Complainant's hearing request but also remanded her complaint to the Agency for the issuance of a final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Special Education Teacher, AD-13, at the Agency's Kessler Elementary School and Secondary Schools in Fort Stewart, Georgia. On July 9, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), color (Black), and reprisal for prior protected EEO activity when, on May 29, 2012, the Principal of Kessler Elementary issued her a rating of "Unacceptable" on her annual performance appraisal.
Following an investigation by the Agency, Complainant requested a hearing before an Administrative Judge. On June 14, 2013, the Agency filed discovery requests upon Complainant. Complainant failed to respond after repeated contacts by the Agency. On January 10, 2014, Complainant responded to the Agency's counsel and requested an extension to respond to discovery "over the weekend," which the Agency granted. Complainant again failed to respond to the discovery requests within the time permitted. On January 13, 2014, Complainant's counsel claimed that they could not locate the Agency's initial discovery requests and asked that they be resent. On January 13, 2014, Agency counsel resent the discovery requests via email. Receiving no response, Agency counsel sent the discovery requests again via US mail on January 17, 2014. On January 21, 2014, Complainant's counsel acknowledged receipt but requested more time to respond, which the Agency again granted. Complainant, however, again failed to provide the discovery responses as agreed; consequently, on March 18, 2014, the Agency filed a Motion to Compel. The record indicates that Complainant did not respond to the Motion to Compel.
On April 17, 2014, the AJ conducted a telephonic Pre-Hearing Conference (PHC) with the parties at which time the AJ addressed Complainant's failure to submit a Pre-Hearing Statement as ordered and the outstanding discovery responses. Complainant's counsel indicated that he was not prepared for the PHC and had not been diligent in his representation of his client's case but would be prepared and responsive going forward. The AJ advised Complainant's counsel that he was granting the Agency's Motion to Compel.
On April 28, 2014, the AJ mailed the written order granting the Agency's Motion to Compel and ordered Complainant to respond to the Agency's discovery requests within fifteen (15) calendar days from the date of the Order. Complainant did not respond to the AJ's Order. The AJ noted that none of his correspondence to Complainant's counsel had been returned undelivered and that Complainant's counsel received his Pre-Hearing Conference Order and did in fact attempt to participate in the April 17, 2014, PHC.
On May 14, 2014, the Agency filed its Motion for Sanctions requesting that the complaint be dismissed. In its Motion, the Agency argued that Complainant's failure to comply with the Order dated April 28, 2014, severely prejudiced its ability to prepare an adequate defense, prepare dispositive motions, and prepare for a hearing on the merits. Complainant did not respond to the Agency's Motion for Sanctions. Therefore, the AJ granted the Agency's Motion for Sanctions. The hearing request was dismissed, and on June 9, 2014, this matter was remanded to the Agency for a final decision.
Thereafter, the Agency issued a final order that adopted "in full" the AJ's decision. The Agency, however, characterized the AJ's decision as dismissing Complainant's complaint and granting its motions for sanctions.
CONTENTIONS ON APPEAL
On appeal, Complainant, among other things, contends that the information requested by the AJ was in fact forwarded to the Agency and the Agency did not notify the AJ that the materials had been received. Complainant also maintains that there must have been a problem with the Postal Service.
In response, the Agency, among other things, maintains that Complainant repeatedly failed to respond to discovery requests and therefore the AJ properly dismissed the case as a sanction. The Agency maintains that Complainant's claim that the required discovery material were served upon the Agency is just not credible; as is her claim that the Postal Service failed.
ANALYSIS AND FINDINGS
As an initial matter, we note that EEOC Regulation 29 C.F.R. �1614.109(f)(3), along with EEOC Management Directive 110 Chapter 7, pp.9-10, authorize the Commission's Administrative Judges to sanction either party for failure to fully and timely respond to orders issued during the hearing process, without good cause shown. 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. Here, we find that the AJ's decision to dismiss Complainant's request for a hearing and to remand the instant complaint to the Agency for the issuance of a final decision was not an abuse of discretion. The record reflects that Complainant was informed that failure to comply with the AJ's orders could result in sanctions. Therefore, we find that the AJ's decision to remand the complaint for a final decision was appropriate.
Moreover, we find that the Agency failed to comply with its final order which "fully" adopted the AJ's decision. A review of the AJ's decision clearly indicates that he directed the Agency to issue a final decision on the merits. The Agency, however, dismissed Complainant's complaint without addressing her allegations of discrimination.
CONCLUSION
We find that the Agency has not complied with its final order, as such the Agency's final order is VACATED and Complainant's complaint is REMANDED to the Agency for further processing in accordance with this decision and the ORDER below.
ORDER
The Agency, upon receipt of the remanded complaint, shall acknowledge to Complainant that it shall issue a final decision within sixty (60) days of its receipt of this decision. A copy of the Agency's letter of acknowledgment to Complainant must be sent to the Compliance Officer as referenced below.
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 (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's signature
Carlton M. Hadden, Director
Office of Federal Operations
__3/2/17________________
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.
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