01a35340
01-18-2005
Mary E. Voysest, Complainant, v. Jo Anne B. Barnhart, Commissioner, Social Security Administration, Agency.
Mary E. Voysest v. Social Security Administration
01A35340
January 18, 2005
.
Mary E. Voysest,
Complainant,
v.
Jo Anne B. Barnhart,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 01A35340
Agency No. SSA-01-0527
Hearing No. 170-A2-8425X
DECISION
Complainant timely initiated an appeal from a August 20, 2003 agency
final order concerning her equal employment opportunity (EEO) complaint
of unlawful employment discrimination brought pursuant to Title VII
of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. �
2000e et seq. and Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405.
Complainant, a GS-11 Claims Representative in the Title II Section at
the agency's Hackensack New Jersey District Office, filed a formal EEO
complaint on September 5, 2001. Therein, complainant claimed that she
was the victim of unlawful employment discrimination on the bases of
race (Caucasian), national origin (Peruvian), and disability (mental and
physical), when she did not receive a commendable act of service award;
a recognition of service award; or an on-the-spot award, during the 2001
awards season.
At the conclusion of the investigation, complainant received a copy
of the investigative report, and requested a hearing before an EEOC
Administrative Judge (AJ). The hearing was conducted on June 25,
2003, and the AJ rendered a decision on July 31, 2003, finding no
discrimination. The agency's final order adopted the AJ's determination,
and the instant appeal followed.
In his decision, the AJ noted that complainant received proper notice
of the Scheduling Order, on March 31, 2003, which directed her to
submit a pre-hearing statement and witness list by April 15, 2003.
When complainant submitted these items six days late, on April 21,
2003, the AJ denied complainant's request for witnesses at the hearing,
including complainant herself.
According to the record, a pre-hearing conference was telephonically
conducted on April 28, 2003, wherein the AJ advised the parties that
neither complainant nor her witness would be allowed to testify at the
hearing, because despite proper receipt of the March 31, 2003 Scheduling
Order, she untimely submitted her witness list. There is no indication
that the AJ issued a show cause order regarding this action. Moreover,
there is no indication that the AJ otherwise provided complainant with an
opportunity to �show cause� as to why this sanction should not be imposed.
Instead, the AJ rejected complainant's witness list when it arrived six
days late, and would not allow her, or any of her witnesses, to testify at
the hearing. The record is devoid of any indication that complainant,
who was represented by a non-attorney, understood that the AJ's action
was a sanction, or that she was entitled to a response.
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).
A sanction 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 suffice to deter the conduct and to equitably remedy the
opposing party, an AJ may be abusing his or her discretion to impose
a harsher sanction. See Hale v. Department of Justice, EEOC Appeal
No. 01A03341 (December 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.
As a procedural safeguard, before imposing a sanction, the AJ must insure
that the non-complying party had notice of the order at issue, as well
as the consequences for non-compliance with the order. Additionally,
the AJ must give the non-complying party the opportunity to explain, or
�show cause,� why a potential sanction should not be imposed. See EEOC
Management Directive 110, Chapter 7, November 9, 1999 (EEO MD-110).
In this case, we find that the AJ did not follow the proper procedure
before issuing the sanction; and, under the circumstances of this
case, abused his discretion by issuing a sanction that would prevent
complainant from testifying at her own hearing. Additionally, we find
that the sanction issued by the AJ in this case was too harsh for the
non-compliance at issue. Complainant submitted her pre-hearing statement
and witness list on April 21, 2003, a week prior to the April 28, 2003
pre-hearing conference, and more than two months prior to the June 25,
2003 hearing. Although it was late, complainant's pre-hearing statement
and witness list were nonetheless in the hands of the AJ and agency in
sufficient time prior to both the pre-hearing conference and hearing.
We therefore determine that the non-compliance at issue neither prejudiced
the agency, nor delayed justice. Further, we find that the record is
devoid of any evidence to suggest that complainant's non-compliance
with the time limit was contumacious in nature, or that she repeatedly
failed to comply with the AJ's orders. Moreover, we find that there
is no evidence to show that complainant's untimely submission had a
deleterious effect on the integrity of the EEO process.
In conclusion, we find that the AJ's sanction was improperly issued
without the required procedural safeguards. We further find that the
AJ abused his discretion by issuing a sanction that was not �tailored�
to deter the conduct of the non-complying party and to equitably remedy
the opposing party.
Accordingly, for the reasons set forth above, we VACATE the agency's
final order, and REMAND this case to the agency to schedule a hearing
on the captioned complaint at the EEOC's Philadelphia District Office,
as specified in the ORDER below.
ORDER
The agency is ORDERED to take the following action:
Within fifteen (15) calendar days of the date that this decision becomes
final, the agency shall request that the EEOC's Philadelphia District
Office schedule a hearing on the captioned complaint, attaching a copy
of this decision to its request.
Copies of all pertinent document confirming compliance with this ORDER
must be sent to the Compliance Officer, as indicated below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (R0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
January 18, 2005
__________________
Date