01A24924
08-26-2003
Mary L. Dombrowski, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Mary L. Dombrowski v. Department of the Navy
01A24924
August 26, 2003
.
Mary L. Dombrowski,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A24924
Agency No. DON 94-68931-002
Hearing No. 150-99-8585X
DECISION
Complainant timely initiated an appeal from the agency's final order
concerning her equal employment opportunity (EEO) 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, and the
Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. For the following reasons,
the Commission affirms the agency's final order.
The record reveals that complainant, a Contract Surveillance
Representative, GS-7, at the agency's Public Works Center, Jacksonville,
Florida, facility, filed a formal EEO complaint on March 28, 1994,
alleging that the agency had discriminated against her on the basis of
sex (female) when:
(1) she was assigned work at a higher level (GS-9) without receiving
equal pay and benefits as male employees; and
she was not provided the same training as male, GS-9, Contract
Surveillance Representatives.
The agency dismissed the complaint for failure to accept an offer of
full relief. In January of 1995, complainant appealed the dismissal, and
we reversed and remanded. See Dombrowski v. Department of the Navy, EEOC
Appeal No. 01952312 (November 13, 1996). In Dombrowski v. Department of
the Navy, EEOC Request No. 05980676 (May 6, 1999), the Commission denied
the agency's request for reconsideration of the subject appeal and ordered
the agency to forward the complaint to an EEOC Administrative Judge (AJ).
The record reveals that in late 1999, complainant and the agency exchanged
discovery requests and later filed motions to compel discovery. A copy
of the investigative file was provided to complainant on June 30, 2000.
On August 21, 2000, the AJ denied complainant's motion to compel and
granted the agency's motion to compel, requiring complete responses to
the agency's discovery request and stated that any previous responses
provided by her to the agency were unacceptable. On October 26, 2000,
the agency filed a Notice of Motion and Motion for Protective Order and
Sanctions for Failure to Comply with Discovery Order.
Subsequently, the complaint was reassigned to a second AJ. On April
3, 2002, the second AJ found that complainant had not shown that she
submitted complete and thorough responses to the agency's original
discovery request in a timely manner or had an acceptable justification
for not having done so, to be in compliance with the first AJ's August 21,
2000, order. She imposed the following sanctions: an adverse inference
would be drawn that the requested information would have reflected
unfavorably on the complainant; and, other evidence offered by the
complainant would be excluded.
As a result of the adverse inference drawn against the complainant,
the second AJ found that there were no genuine issues of material fact
in dispute. The AJ concluded that complainant failed to establish a
prima facie case of discrimination under Title VII or the EPA and issued
a decision without a hearing, finding no discrimination. She found that
complainant: was not assigned Contract Surveillance Representative work
at the GS-9 level; was provided with Contract Surveillance Representative
training at the GS-7 and GS-9 levels; was not discriminated against by
the agency; and, did not suffer damages or loss of back pay from the
agency's actions or omissions. The agency's final order implemented
the AJ's decision.
On appeal, complainant contends that the second AJ erred in imposing
sanctions on her. Complainant asserts that the agency never provided her
a complete investigative file. The agency makes no contentions on appeal.
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);
EEOC Management Directive 110, Chapter 7, pp. 9-10 (1999). However,
such 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 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.
Complainant does not dispute that she failed to respond to the agency's
discovery request or the first AJ's order. While she claims that the
investigative file was incomplete, the record reveals that she was given
the entire investigative file. She is alleging that she was dissatisfied
with the investigation; however, she raised this issue by motion with the
first AJ who denied her motion. Dissatisfaction with the investigation
is not an acceptable justification for not responding to the AJ's order.
Therefore, we agree that complainant's conduct warrants a sanction and
find that the the second AJ acted within her discretion and issued an
appropriate evidentiary sanction against complainant.
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. If a case
can only be resolved by weighing conflicting evidence, the issuance of
a decision is not appropriate. In the context of an administrative
proceeding, an AJ may properly consider issuing a decision without a
hearing only upon a determination that the record has been adequately
developed for summary disposition. See Petty v. Department of Defense,
EEOC Appeal No. 01A24206 (July 11, 2003).
With respect to complainant's allegations of discrimination, the agency's
interrogatory requested, in part, that complainant respond as to whether
she was working and/or denied training at the GS-9 level in the Contract
Surveillance Representative position and to provide all information
supporting the allegations as well as the names of persons with knowledge
of the facts of her allegations. The interrogatory further requested her
to provide information on any damages and back pay due as a result of the
alleged discrimination. The agency's interrogatory thoroughly addresses
both the issues raised by complainant in her complaint. Therefore,
as a result of the adverse inference against complainant covering the
issues of her allegedly having to work at the GS-9 level and being
denied GS-9 level training, there is no genuine issue of material fact
in dispute. We find that the adverse inference drawn by the second AJ
belies complainant's ability to argue that a dispute of a genuine issue
of material fact exists. We therefore conclude that the second AJ's
issuance of a decision without a hearing was appropriate.
We conclude that complainant failed to establish, by a preponderance of
the evidence, that the agency's actions were motivated by discriminatory
animus towards her sex. We discern no basis to disturb the second AJ's
decision. Therefore, after a careful review of the record, including
arguments and evidence not specifically addressed in this decision,
we affirm the agency's final decision.
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 (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. 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. If you
file a request to reconsider and also file a civil action, 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
August 26, 2003
__________________
Date