Randolph S. Koch, Complainant,v.Harvey L. Pitt, Chairman, U.S. Securities and Exchange Commission, Agency.

Equal Employment Opportunity CommissionDec 21, 2001
01A04600 (E.E.O.C. Dec. 21, 2001)

01A04600

12-21-2001

Randolph S. Koch, Complainant, v. Harvey L. Pitt, Chairman, U.S. Securities and Exchange Commission, Agency.


Randolph S. Koch v. Securities and Exchange Commission

01A04600, 01A05012, 01A01083

December 21, 2001

.

Randolph S. Koch,

Complainant,

v.

Harvey L. Pitt,

Chairman,

U.S. Securities and Exchange Commission,

Agency.

Appeal Nos. 01A04600, 01A05012, 01A01083

Agency Nos. 28-96 and 18-99, 50-96 and 51-97, and 04-96

DECISION

INTRODUCTION

Each of the above-referenced appeals was filed by Randolph S. Koch

(�complainant�) against the United States Securities and Exchange

Commission (�the agency�). Each involves numerous allegations of unlawful

employment discrimination by the agency against complainant on the bases

of complainant's race (White), sex (male), religion (Jewish), disability

(unspecified), age (over 40), and/or reprisal (prior EEO activity).

Further, each alleges violations of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. � 2000e et seq., the Age Discrimination in

Employment Act of 1967, as amended, 29 U.S.C. � 621 et seq., Section 501

of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.,

and/or the Equal Pay Act of 1963, as amended, 29 U.S.C. � 206(d) et seq.

These appeals have long and complicated procedural histories. They

relate to the dismissal of five separate discrimination complaints for

complainant's failure to prosecute the claims the complaints contain.

For administrative convenience, and because they involve similar issues,

we have consolidated these appeals. See 29 C.F.R. � 1614.606. For the

reasons detailed below, we have concluded that complainant did indeed

refuse to cooperate in the administrative processing of the complaints

at issue here. Consequently, we have also concluded that the dismissal

of each of these five complaints was warranted and should be affirmed.

ISSUE PRESENTED

Whether the administrative dismissal of five separate discrimination

complaints � all on the grounds that complainant had failed to cooperate

in the investigation and EEO processing of the claims at issue � should

be upheld

BACKGROUND

EEOC Appeal No. 01A04600 (Discrimination Complaint Nos. 28-96 and 18-99)

This appeal pertains to two separate complaints filed by complainant

on July 8, 1996 and September 1, 1999, respectively. In the July 1996

complaint, complainant alleged discrimination on the bases of age, sex,

race, religion, disability and reprisal for prior EEO activity when

(1) agency management denied him sufficient official time to prepare

briefs relating to EEOC appeals or other legitimate EEO activities,

and required him to use what official time was granted at his office

(rather than at his home); (2) a GS-13 Financial Analyst position was

posted in another agency branch in a �surreptitious manner� to ensure

that a pre-selected candidate (not complainant) would be chosen for

it; (3) the agency's EEO office (�OEEO�) dismissed most of his prior

complaints on �spurious bases� and without following its own procedures

and precedential guidance from EEOC; and (4) one agency official made

discriminatory and hostile statements about complainant's performance,

attendance, and time spent on EEO-related matters during office hours.

See Discrimination Complaint No. 28-96 (Jul. 8, 1996), at 1-3.

By letter dated December 10, 1996, OEEO dismissed all of the claims

contained in this Discrimination Complaint No. 28-96. The agency

dismissed these allegations for failure to state a claim pursuant to 29

C.F.R. � 1614.107(a). It told complainant that:

[t]o state a claim for relief, a complainant must show that he

experienced some loss or harm in connection with a term, condition

or privilege of employment as a result of the alleged discriminatory

practice. See Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994). None of the incidents of alleged

discrimination cited in your complaint, if proven, would constitute harm

to a term, condition or privilege of employment . . . . [For example,]

[y]ou allege that you suffered discrimination when you were allowed

only four hours of official time to work on EEO matters instead of

the eight hours that you had requested. This allegation does not

state an actionable claim because you do not have a right to any

specified amount of official time . . . . You allege the Commission

engaged in discriminatory and retaliatory employment practices when a

GS-13 Financial Analyst position was not posted in your branch, and an

employee holding a GS-12 Financial Analyst position in another branch

was selected for the position . . . . You admit, however, that you

knew about the position but did not apply because of your belief that

a candidate had been preselected . . . . Because you did not apply

for the position, you are not an aggrieved employee and do not have

standing to file a complaint with respect to this allegation . . . .

You [also] allege that [OEEO] discriminated and retaliated against you

in the manner in which it has handled your previous complaints . . . .

Specifically, you claim there has been an undue delay in the EEO

Office's issuance of decisions to dismiss some of your prior complaints,

and the dismissals �were done on spurious bases . . . .� [However,]

[t]he EEO Office adheres to the regulations promulgated by EEOC in

processing all EEO complaints, including yours . . . . Any delay that

you may have experienced was a result of the caseload in the office

at that particular point in time. Moreover, you suffered no loss of

any of your EEO rights or privileges in the administrative process as

a result of any possible delay. Therefore, this allegation does not

state a claim upon which relief can be granted . . . . [Finally,]

[y]ou allege . . . that the Associate Director �made discriminatory

and hostile statements regarding [your] performance, attendance and

EEO-related work in the . . . office during work hours . . . .� [T]he

statements about which you complain were made by the Associate Director

to the EEO Counselor during the counseling stage of your complaint

. . . . Such statements to an EEO counselor . . . are essential to

the integrity of the EEO process. Therefore, such statements do not

render you an aggrieved individual.

Agency's Notice of Dismissal of Discrimination Complaint No. 28-96

(Dec. 10, 1996), at 2-5.

Complainant timely appealed this dismissal on January 9, 1997. See

Complainant's Notice of Appeal of Agency's Dismissal of Discrimination

Complaint No. 28-96 (Jan. 9, 1997). Subsequently, on March 13, 1997,

the agency reconsidered, sua sponte, its dismissal letter. It told

complainant that �[u]pon further review,� the agency's EEO Director had

reconsidered its dismissal of �whether the [agency] discriminated against

you on the bases of age, sex, religion, disability and/or reprisal

when . . . you were granted four hours of official time, rather than

the eight hours you had requested, and . . . you were not permitted

to work at home during your use of official time . . . .� The agency

informed complainant that these �accepted allegations will be assigned

to an investigator for formal investigation . . . .� Agency's Amended

Notice of Acceptance/Rejection of Discrimination Complaint No. 28-96

(Mar. 13, 1997), at 1.

In a decision dated November 13, 1997, we ruled that the agency had

properly dismissed the other three allegations contained in Discrimination

Complaint No. 28-96. More specifically, we noted that these allegations:

involved [complainant's] nonselection to a GS-13 Financial Analyst

position; the agency's improper processing of his previous EEO complaints;

and comments made by an agency official during his EEO counseling.

Since [complainant] did not apply for the subject position, we find that

allegation (1) fails to state a claim. See Trafficante v. Metropolitan

Life Insurance Co., 409 U.S. 204 (1972). With regard to allegation

(2), the Commission has held that allegations of improper processing do

not state processable claims . . . . With regard to allegation (3),

[complainant] provides no persuasive evidence in the record that he

sustained any personal injury or harm as a result of the alleged comments.

See Henry v. United States Postal Service, EEOC Request No. 05940695

(February 9, 1995). Accordingly, the agency's final decision is AFFIRMED.

Koch v. Securities and Exchange Commission, EEOC Appeal No. 01972029

(Nov. 13, 1997).

In this decision, the Commission did not address the claim concerning

denial of official time to work on EEO matters, since the agency

had already agreed to investigate this allegation. In attempting to

investigate it, on December 4, 1997, OEEO contacted complainant and

informed him that since more than 180 days had passed since the filing

of the complaint, he was entitled to request a hearing before an EEOC

Administrative Judge. Alternatively, the agency explained, complainant

could allow the investigation to go forward. The agency then noted

its intentions to proceed with the investigation for the present,

and requested that complainant make himself available to give his

account of events related to this outstanding claim. Specifically, the

agency requested that he appear for a one hour deposition on the issue.

See Agency's Letter Requesting Deposition in Discrimination Complaint

No. 28-96, at 1 (Dec. 4, 1997).

In an email response, complainant said he was �quite puzzled about the

need for another statement, particularly one that might take an hour,

on such a limited issue.� Complainant suggested that if such a statement

were necessary, it should not take place until he decided whether to file

a request for reconsideration on the other allegations in Discrimination

Complaint No. 28-96 (and until some of those issues were thus resolved

finally by EEOC). See Complainant's Email Response to Agency's Request

for Deposition (Dec. 9, 1997). The agency agreed to �wait the requisite

period of time for you to decide whether to request reconsideration from

EEOC in this matter. If you opt to do so, we will await EEOC's response

before proceeding with our investigation.� Agency's Email Response to

Complainant's Email Response (Dec. 16, 1997).

Complainant did submit a request for reconsideration to the Commission on

December 29, 1997. This request was denied. See Koch v. Securities and

Exchange Commission, EEOC Request No. 05980240 (Nov. 4, 1999). The agency

then resumed its attempts to investigate the final EEO claim stemming from

Discrimination Complaint No. 28-96. On December 20, 1999, the agency sent

complainant a letter again asking that complainant make himself available

to provide details about the agency's purported denial of official

time for preparing EEO complaints. See Agency's Letter to Complainant

Reinitiating Investigation of Discrimination Complaint No. 28-96

(Dec. 20, 1999). Complainant never answered this agency request.

Consequently, three months later, the agency sent another request for

complainant's testimony, this time via email. See Agency's Email to

Complainant Requesting Testimony (Mar. 6, 2000). Complainant responded

by email, stating that he would �respond to this in the next few days

. . . . As I recall from my reading the [applicable EEOC] regulations,

I am entitled to request an immediate decision from the agency without

waiting for investigation, given the age of the case.� Complainant's

Email Response to Agency's Email Request for Testimony (Mar. 6, 2000).

As of a week later, however, the agency had still received no indication

from complainant as to when he might be available to have his deposition

taken. The agency thus sent yet another request for testimony to

complainant on March 13, 2000. In its letter, the agency stated:

You indicated . . . that you might prefer an immediate agency decision

without an investigation. We do not believe that a final agency decision

on the merits is possible without your testimony. Accordingly, if that

is what you would like, we will need to schedule your testimony at your

earliest convenience. Alternatively, you may opt for an EEOC hearing

. . . . A complainant must cooperate with the EEO investigator . . . .

Failure to do so is grounds for dismissal . . . . This letter constitutes

notice of our intent to dismiss [Discrimination Complaint No. 28-96]

for failure to cooperate unless you contact us, within fifteen (15)

days after receiving this letter, to schedule your testimony, or to

notify us of your intent to pursue the matter before EEOC.

Agency's Notice of Intent to Dismiss Discrimination Complaint No. 28-96

(Mar. 13, 2000), at 1.

In the meantime, a different complaint, filed by complainant against

the agency in September of 1999, was also wending its way through the

administrative EEO process. In this complaint, Discrimination Complaint

No. 18-99, complainant alleged discrimination based on disability,

age, religion, and reprisal when (1) the agency failed to allow him to

participate in its �leave transfer� program; (2) the agency failed to

grant his request for leave under its �Family and Medical Leave� program;

(3) the agency denied him use of credit hours on a continuous basis;

(4) the agency unfairly excluded certain employees suffering certain

chronic medical disorders from its sick leave policy; (5) the agency

failed to respond to his request for an accommodation (specifically, his

request for a �gliding schedule� necessitated by his medical condition);

(6) OEEO engaged in misconduct in colluding with the illegal activity

of EEOC in investigating earlier complaints filed by complainant

(Discrimination Complaint Nos. 28-95, 40-95, and 64-95); (7) OEEO and

other units of the agency engaged in misconduct by communicating ex parte

with EEOC about, and tampering with administrative processes related to,

another prior complaint (Discrimination Complaint No. 04-96); (8) the

agency imposed upon him strict measures for accounting for leave taken

(even though it excused other employees from such strict accountability);

(9) the agency's Office of Administrative and Personnel Management failed

to address questions he raised regarding whether work was being properly

assigned to him, given his grade level; (10) the agency failed to inform

him of the academic requirements necessary to convert to accountant status

in 1992; and (11) the agency improperly placed him on leave restriction,

and scrutinized his leave more closely than that taken by other employees.

Complainant also appeared to raise allegations of religious harassment

(resulting from one agency official's purported �Germanophilic chauvinism�

and another's anti-semitism). See Discrimination Complaint No. 18-99

(Sept. 1, 1999), at 1-3.

On November 2, 1999, the agency requested that complainant provide

detailed information about each of the allegations made in this

particular complaint. The agency asked that complainant provide such

information by November 15, 1999 so that it could properly �evaluate

[his] complaint.� See Agency's Letter to Complainant Requesting Details

Concerning Discrimination Complaint No. 18-99 (Nov. 2, 1999), at 1.

It appears, however, that this initial request letter never reached

complainant, as it was returned to the agency unopened on December

14, 1999. The agency thereafter allegedly hand-delivered a copy of

the request for information to complainant at his office address.

See Agency's Memorandum to File (Apr. 5, 2000). Some three months

later, though, the agency still had not received any response from

complainant concerning this request for information. It thus sent him

(and hand-delivered) another request letter on March 6, 2000, noting:

This letter is our final attempt to secure the necessary information.

A Complainant must provide complete cooperation in the investigation

of his / her complaint [and a] [f]ailure to cooperate with the EEO

investigation is grounds for dismissal. [Accordingly,] . . . [t]his

letter constitutes notice of our intent to dismiss [Discrimination

Complaint No. 18-99] for failure to cooperate unless you provide us

with the requested information within fifteen (15) days after receiving

this letter.

Agency's Notice of Intent to Dismiss Discrimination Complaint No. 18-99

(Mar. 6, 2000), at 1.

Complainant immediately responded to this agency notice with an email

in which he denied ever receiving any previous agency request for

detail concerning Discrimination Complaint No. 18-99. He said that

�[j]ust minutes ago, a member of your office staff dropped off your

letter dated March 6, 2000 concerning the subject case.� Complainant

suggested that the prior (November 2, 1999) correspondence may perhaps

have been sent to the wrong post office, and alleged that he never

received the hand-delivered copy of it. Complainant then stated, as he

had in connection with Discrimination Complaint No. 28-96, �I might be

entitled to go forward without further investigation by requesting an

immediate decision.� Complainant's Email Response to Agency's Notice

of Intent to Dismiss (Mar. 6, 2000).

One week later, the agency responded. It noted:

[g]iven the passage of time, you have asked whether you might forego

the investigation and request an immediate decision. Please be advised

that your complaint is not at the investigative stage since it has not,

as of yet, been accepted. Additional information was deemed necessary

prior to accepting the complaint, or any portion of it. Accordingly,

we requested additional information in correspondence dated November 2,

1999 . . . . Since you denied receiving that letter prior to March 6,

2000, we will give you an additional fifteen (15) days from receipt of

this letter to provide us with the information requested therein. If you

comply with that request, and after reviewing your response we decide to

accept any portion of your complaint, we will be ready to investigate.

At that point, since 180 days will have passed, you will have the option

of voluntarily extending our investigative period or requesting a hearing

before an EEOC Administrative Judge. This letter constitutes notice

of our intent to dismiss the above referenced complaint for failure to

cooperate unless you provide us with the requested information within

fifteen (15) days after receiving this letter.

Agency's Final Notice of Intent to Dismiss Discrimination Complaint

No. 18-99 (Mar. 13, 2000), at 1-2.

Rather than respond with details about the allegations made in

Discrimination Complaint 18-99, however, complainant sent a letter to

OEEO's director, requesting a hearing before an EEOC Administrative

Judge. In this letter, he refused to agree to investigation of either

Discrimination Complaint No. 28-96 or No. 18-99. Indeed, complainant

told the agency:

[Y]ou are not authorized to continue (or start) any investigation once

180 days have passed since the filing of the complaint. I must agree

to extend the time period for completing the investigation. I have

not done so. I regard your office's statement that you have not yet

�accepted� my latest complaint as not worthy of comment. Should I be

dissatisfied with any aspect of the conduct of the hearing process,

I reserve the right to withdraw the hearing request and ask for a final

decision by your office.

Complainant's Letter Requesting Hearings (Mar. 21, 2000).<1>

On March 20, 2000 and March 21, 2000, complainant submitted official

requests for hearings on these two complaints to the EEOC Hearings

Unit of the Washington, D.C. Field Office. See Complainant's Request

for Hearing on Discrimination Complaint No. 28-96 (Mar. 20, 2000);

and Complainant's Request for Hearing on Discrimination Complaint

No. 18-99 (Mar. 21, 2000). After receiving the relevant order from

a Supervisory EEOC Administrative Judge, the agency forwarded to

the EEOC Washington, D.C. Field Office the files for Discrimination

Complaint Nos. 28-96 and 18-99. In a cover letter, the agency also

detailed the procedural history of both cases (including complainant's

failure to produce requested information). See Agency's Letter to EEOC

Hearings Unit (Apr. 6, 2000).<2> An EEOC Administrative Judge (�AJ�)

was subsequently appointed to conduct the hearings. On April 18, 2000,

this AJ consolidated Discrimination Complaint Nos. 28-96 and 18-99.

AJ also ruled that:

[w]ithin ten calendars days from the date of this ORDER, Complainant is

required to respond to the Agency's dismissal notice and provide EEOC

with a copy of his response. The Agency lacks jurisdiction to dismiss

a complaint after a complainant has requested a hearing pursuant to 29

C.F.R. � 1614.108(g). I will determine whether dismissal of either

or both complaints is appropriate. 29 C.F.R. � 1614.109(b) (1999).

If I determine that dismissal of any claim(s) is not appropriate, the

claim(s) will be held in abeyance for the Agency to investigate it/them

and other pending claims . . . .

EEOC regulations provide that, where a party fails without good cause

shown to respond fully and in a timely fashion to the Administrative

Judge's order and/or the party has not otherwise cooperated in the

discovery process, the Administrative Judge may impose sanctions.

The Administrative Judge may: (i) draw an adverse inference that the

requested information, or the testimony of the requested witnesses, would

have reflected unfavorably on the party refusing to provide the requested

information; (ii) consider the matters to which the requested information

or testimony pertains to be established in favor of the opposing party;

(iii) exclude other evidence offered by the party failing to produce

the requested information or witness; (iv) issue a decision fully or

partially in favor of the opposing party; or (v) take such other actions

as appropriate. 29 C.F.R. � 1614.109(f)(3). �Other actions� may include

dismissal pursuant to 29 C.F.R. � 1614.107(a)(7), 1614.109(b) (1999).

AJ's Order Acknowledging Hearing Requests, Notice of Consolidation,

and Order to Show Cause (Apr. 18, 2000), at 1-3.

On May 4, 2000, the agency informed AJ that it had still heard nothing

from complainant. The agency reminded AJ that his order directed

complainant to respond to the agency's proposed dismissal notice in each

case within ten days of the date of the order (i.e., by April 28, 2000).

�Just as complainant failed to respond to the Agency's notice of proposed

dismissal in each case,� the agency wrote:

complainant has ignored your order and has again failed to respond to

the Agency's dismissal notices. The April 18 order provided [him] with

adequate written notice that sanctions could be imposed for his failure to

comply with the provisions of the administrative order, and that either

or both complaints could be dismissed . . . . Notwithstanding this

written notice, [complainant] has still failed to respond.<3> In light

of [his] continuing failure to comply, dismissal of both complaints is

an appropriate sanction.

Agency's Motion to Dismiss Discrimination Complaint Nos. 28-96 and 18-99

(May 4, 2000), at 1-2.

In a letter to AJ dated May 4, 2000, complainant said:

The [agency] requests that you dismiss the case inasmuch as I did

not respond by April 28, 2000, to your order. Unfortunately, I did

not receive such order until the day after it was due, April 29th.

There was no way I could respond by your deadline. I hereby withdraw

the request for a hearing.

I do not regard the order as legal. It is clearly not based on proper

interpretation or application of statute or current EEOC regulation

. . . . Further, your order is built upon fake and doctored evidence

in the record, i.e., the evidence purporting to show that I failed to

pick up and respond to questions mailed in November, 1999, and apparently

misdelivered. The [EEO officials at the agency] appear to have not only

tampered with and altered evidence � they appear to have manufactured

false evidence purporting to prove subsequent hand delivery . . . .

This matter represents possible criminal and unethical conduct of the most

serious kind � tampering with and falsifying evidence and intentionally

deceiving and misleading the tribunal. I have discussed this informally

with the Office of the Bar Counsel of the District of Columbia and the

U.S. Attorney's office . . . . Unfortunately your conduct already in

this case suggests that your office is continuing to engage in ex parte

contacts with [the agency] and is actually colluding with the agency

in the prosecution of their defense. Accordingly, I hereby withdraw

my request for a hearing in the above consolidated matter. I will

request an immediate [agency] decision in this matter as is my right.

I await your response concerning your actions in connection with the very

serious, possibly criminal, activity engaged in by the [agency] staff.

I also await your explanation of your role, including disclosure of any

and all ex parte contacts in which you or your colleagues (including

supervisors) have engaged.

Complainant's Response to Agency's Motion to Dismiss (May 4, 2000),

at 1-2.

On May 8, 2000, AJ responded with an order dismissing both complaints.

AJ acknowledged complainant's claim that he had not received AJ's order

until after the compliance period had passed. �Even assuming that this

is correct,� AJ ruled, he �did not request an extension of time to comply

with the Order, once he received it. Rather, Complainant filed nothing

in response to the Order until the Agency filed a Motion to Dismiss.

Complainant also stated that he was withdrawing his hearing request, but

that request also came after the deadline for complying with the Order

to Show Cause. Accordingly, dismissal for failing to comply with the

Order is appropriate.� AJ's Order Dismissing Discrimination Complaint

Nos. 28-96 and 18-99 (May 8, 2000), at 2.

AJ found that:

Complainant has demonstrated an unwillingness to cooperate in the

processing of his case by flouting my Order to Show cause. Complainant

did not respond to the Order to Show Cause within ten calendar days,

did not request an extension to file a response, and did not comply with

any of the directives in the Order by providing the Agency a response to

the dismissal notices. Due to Complainant's failure to cooperate in the

prosecution of his complaints, the complaints are DISMISSED pursuant to

. . . 29 C.F.R. � 1614.107(a)(7) and 1614.109(b) . . . . To arrive at any

other result in this case would effectively reward [complainant] for his

intransigent behavior and abuse of and contempt for the hearings process.

See Schneider v. Department of the Treasury, EEOC Request No. 05940298

(Dec. 9, 1994). The record does not contains [sic] sufficient information

upon which to base an adjudication. See Wren v. Department of Veterans

Affairs, EEOC Request No. 05920705 (April 1, 1993).<4>

Id. at 3.

In a Final Action Order dated May 15, 2000, the agency stated that it

would fully implement AJ's order dismissing Discrimination Complaint

Nos. 28-96 and 18-99. See Agency's Final Action Order (May 15, 2000),

at 1. On June 19, 2000, complainant faxed a letter to the Commission

requesting that it accept his fax as an appeal from this final agency

action.<5> See Complainant's Notice of Appeal of Agency's Dismissal

of Discrimination Complaint Nos. 28-96 and 18-99 (June 19, 2000), at 1.

The Commission sent complainant a letter acknowledging that his appeal

had been received on June 19, 2000, indicating that it had been docketed

as EEOC Appeal No. 01A04600, and notifying him of the requirement that

he file any supporting brief within 30 days of that date.

On July 12, 2000, however, complainant faxed another letter to EEOC

requesting an extension of time for filing a supporting brief, claiming

that �all the documents relating to these appeals are missing, and

presumably lost, as the result of a home move which I completed last

week.� Complainant's Faxed Request for Extension of Time to File Brief

in Support of EEOC Appeal No. 01A04600 (Jul. 12, 2000).<6> We granted

complainant an extension until August 18, 2000. However, despite his

request for (and our grant of) an extension to file a supporting brief,

complainant never did submit any additional documentation related to

EEOC Appeal No. 01A04600.

EEOC Appeal No. 01A05012 (Discrimination Complaint Nos. 50-96 and 51-97)

This appeal relates to two other complaints filed by complainant

on November 8, 1996 and November 17, 1997, respectively. The first

complaint alleged discrimination on the bases of age, sex, race, religion,

disability and/or reprisal for prior EEO activity when (1) complainant

received a lower performance appraisal for the rating period ending

April 30, 1996 than he believed he deserved (and never received any

interim performance evaluation for this period), and agency management

�consciously� and �continually� refused to honor his requests to receive a

more reasonable workload; (2) the Office of the Inspector General failed

to conduct a fair and impartial investigation of, and reach the proper

conclusion on, allegations of agency misconduct raised by complainant;

(3) OEEO improperly dismissed prior EEO complaints complainant had

filed, and �deceitful� and �unethical� OEEO employees �continue[d]

to pursue a role of partisan attack on [his] exercise of EEO rights�;

and (4) an agency official made numerous hostile statements regarding

complainant's disabling health condition and �also made statements

threatening [complainant] with legal action for pursuing defense of [his]

rights through the protected process.� See Discrimination Complaint

No. 50-96 (Nov. 7, 1996), at 1-2.

The agency first accepted some of these allegations for investigation.<7>

In September and October of 1998, OEEO contacted complainant several times

suggesting various dates and times when the complainant might make himself

available to give testimony on the accepted claims. See, e.g., Agency's

Memorandum Requesting Testimony on Discrimination Complaint Nos. 04-96 and

50-96 (Sept. 2, 1998); and Agency's Letter Again Requesting Testimony on

Discrimination Complaint Nos. 04-96 and 50-96 (Sept. 17, 1998). However,

complainant refused to provide any aid to the agency's investigation,

asserting that �the failure of [OEEO] to properly and timely investigate

[within 180 days] the various issues already subjects the agency to

potential liability for my discovery costs� and perhaps to �sanctions,�

as well. Complainant's Email Response to Agency's Request for Testimony

(Sept. 17, 1998). Complainant therefore requested a hearing before an

EEOC Administrative Judge. See Complainant's Email Request for Hearing

(Oct. 8, 1998). This request was acknowledged by the agency on October

14, 1998. See Agency's Letter to Complainant Acknowledging Request for

Hearing (Oct. 14, 1998).

However, notwithstanding that a request for a hearing had been made,

the agency subsequently determined that the complaint itself had not been

timely filed (since it was not filed within fifteen days of complainant's

receipt of the relevant Notice of Final Interview), and therefore

ruled that it should be dismissed in its entirety. See Agency's Notice

of Dismissal of Discrimination Complaint No. 50-96 (Jan. 7, 1999).<8>

Complainant appealed this dismissal. See Complainant's Notice of Appeal

of Agency's Dismissal of Discrimination Complaint No. 50-96 (Feb. 8,

1999).<9> We accepted complainant's appeal and ruled that recent

amendments to the relevant EEO regulations precluded the agency's ability

to dismiss the complaint at issue. Specifically, we explained that:

The record shows that Complainant had requested a hearing before

an EEOC Administrative Judge on October 8, 1998, which is prior

to the agency's dismissal of the complaint. Effective November 9,

1999 [the date the new regulations took effect], all dismissals by an

agency must be made prior to a request for a hearing in a case . . . .

Therefore, the agency's dismissal of the complaint shall be vacated

. . . . The agency is ORDERED to process the remanded claims . . . .

The agency shall issue to complainant a copy of the investigative file

and also shall notify complainant of the appropriate rights within one

hundred fifty (150) calendar days of the date this decision becomes

final . . . . If the complainant requests a final decision without

a hearing, the agency shall issue a final decision within sixty (60)

days of receipt of complainant's request.

Koch v. Securities and Exchange Commission, EEOC Appeal No. 01992500

(Mar. 16, 2000).

Subsequently, on March 23, 2000, the agency sent complainant a letter

informing him that EEOC had remanded the complaint to OEEO and had ordered

it to complete an investigation of the matter within 150 days (i.e., by

August 18, 2000). The agency also notified complainant that it would

investigate the issues raised in Discrimination Complaint No. 50-96

that it had originally accepted,<10> and requested that complainant

make himself available for testimony on one of six suggested dates.

The agency also reminded complainant that �[w]hen a federal employee is

called as a witness in an [EEO] investigation, the employee must provide

complete cooperation, including testifying under oath and furnishing

such documents as are requested . . . . Failure to comply with these

obligations could be construed as a failure to prosecute and might lead

to the dismissal of your complaint.� Agency's Acknowledgment of EEOC's

Remand of Discrimination Complaint No. 50-96 (Mar. 23, 2000), at 1-2, 6.

Meanwhile, complainant had also been pursuing another complaint. He had

filed Discrimination Complaint No. 51-97 with the agency on November 17,

1997, alleging discrimination on the bases of disability, sex, race,

age and religion, reprisal for prior EEO activity, and a violation of

the Equal Pay Act, when (1) complainant received a performance appraisal

for the period ending April 30, 1997 reflecting a rating that �was much

lower than deserved for the quality and quantity of work� performed;

(2) the agency imposed �several illegal requirements and conditions�

for conversion from a competitive service Financial Analyst position to

an excepted service Attorney's position; (3) management �deliberately

increased [his] workload,� despite �repeated, legitimate requests . . .for

reduction of workload to a normal level�; (4) the agency rescinded much

of complainant's leave balance �without explanation,� but �shortly after

[he] successfully sought from the Regional Office of [EEOC] consolidation

and remand of several . . . EEO complaints�; and (5) agency officials

�provided inaccurate and misleading information� to an investigator with

the Office of Special Counsel. See Discrimination Complaint No. 51-97

(Nov. 17, 1997), at 1-2.

The agency agreed to accept only allegation (1) for investigation,

and dismissed the rest of the complaint. See Agency's Notice of

Partial Acceptance and Partial Dismissal of Discrimination Complaint

No. 51-97 (Apr. 21, 1998). The agency also reminded complainant of

his �affirmative duty to cooperate in the processing of your complaint

by providing information or sworn testimony,� and that any �[f]ailure

to comply with these obligations could be construed as a failure to

prosecute and might lead to the dismissal of your complaint.� Id. at 7.

Complainant appealed the agency's dismissal of the rest of Discrimination

Complaint No. 51-97. See Complainant's Notice of Appeal of Agency's

Partial Dismissal of Discrimination Complaint No. 51-97 (May 21, 1998).

We accepted this appeal and rendered a decision on it, ruling that:

[Applicable regulations provide] that where the agency believes that

some but not all of the claims in a complaint should be dismissed, the

agency shall notify the complainant in writing of its determination,

the rationale for that determination and that those claims will not be

investigated, and shall place a copy of the notice in the investigative

file. A determination not to investigate certain claims . . . is not

appealable until final action is taken on the remainder of the complaint.

[Discrimination Complaint No. 51-97] involves the partial dismissal of

claims from a complaint. The Commission previously sent letters to both

the agency and the complainant to determine the status of the remainder

of the complaint, i.e., those claims which were not dismissed. Based on

the responses, it appears that the remainder is pending before the agency.

Therefore, this case is being remanded to the agency for consolidation and

further processing in accordance with the [applicable] regulations . . . .

Office of Federal Operations Administrative Closure of EEOC Appeal

No. 01984422 (Dec. 10, 1999).

On March 23, 2000, the agency sent a letter to complainant reminding

him of the decision we rendered, above, and noting that �[a]ccordingly,

we will resume our investigation� of the one issue it had accepted

for investigation from Discrimination Complaint 51-97. See Agency's

Acknowledgment of EEOC's Remand of Discrimination Complaint No. 51-97

(Mar. 23, 2000). In this letter, the agency also notified complainant

that it was consolidating Discrimination Complaint No. 51-97 with

Discrimination Complaint No. 50-96 for joint processing. It asked that

he �[p]lease be prepared to respond to questions regarding both cases

during your upcoming [but still unscheduled] testimony.� Id.

In an email response to this letter, complainant denied ever receiving

a copy of our December 10, 1999 decision administratively closing,

and remanding, Discrimination Complaint No. 51-97. Complainant also

reiterated his belief that �I have the right to request an immediate final

decision since it has been more than 180 days from the date I filed the

complaint.� Complainant's Email Response to Agency's Acknowledgment of

EEOC's Remand (Mar. 23, 2000). The agency answered by indicating �[w]e

do not believe that a final agency decision on the merits is possible

without your testimony. In that regard [we] look forward to hearing

from you by April 3, 2000, with your preferred date of testimony.

Alternatively, you may opt for an EEOC hearing . . . .� Agency's

Response to Complainant's Email Dated Mar. 23, 2000 (Mar. 23, 2000).

On April 3, 2000, complainant did in fact contact the EEOC Hearings

Unit in the Washington, D.C. Field Office seeking the appointment of an

EEOC Administrative Judge to hear Discrimination Complaint Nos. 50-96

and 51-97. See Complainant's Request for Hearing (Apr. 3, 2000).

The same AJ that presided over Discrimination Complaint Nos. 28-96

and 18-99 issued an order on April 27, 2000 concerning Discrimination

Complaint Nos. 50-96 and 51-97. This order stated:

On April 21, 2000, EEOC received Complainant's requests for a hearing in

Agency Case Nos. 50-96 and 51-97. In his hearing requests, Complainant

stated that more than 180 days have passed from the filing of the

complaints. [OEEO] transmitted the existing complaint files and noted

that the referenced cases are pending investigation, having been remanded

by EEOC's Office of Federal Operations [(�OFO�)] . . . . In Agency Case

No. 50-96, OFO ordered the Agency to issue an investigative file within

150 calendar days from March 16, 2000. In Agency Case No. 51-97, OFO

remanded a partial dismissal for processing with the remainder of the

claims in that complaint. The investigation of Agency Case Nos. 50-96

and 51-97 is due to be completed by August 14, 2000 . . . .

Accordingly, Agency Case Nos. 50-96 and 51-97 are consolidated . . . [but]

[t]he hearing requests in Agency Case Nos. 50-96 and 51-97 will be held in

abeyance for the Agency to complete its investigation as ordered by OFO.

See MD-110 ch. 7 Sec. III.D.16 at 7-14 . . . .

[E]ach party shall appear and be prepared for all required appearances.

In addition, a party's failure fully to comply with the provisions

of this Order may be subject to sanctions . . . up to and including

dismissal for failure to prosecute . . . .

AJ's Order Acknowledging Hearing Requests, Consolidating Complaints,

and Placing Hearing Requests in Abeyance (Apr. 27, 2001), at 1-2.

In response to this order, the agency sent another letter to complainant

indicating its intent to investigate the allegations from Discrimination

Complaint Nos. 50-96 and 51-97 that it had accepted, and asking that

complainant make himself available for testimony on one of three possible

dates. The agency asked that complainant respond with his preferred

date by May 15, 2000. It also, once again, reminded complainant of

his duty to cooperate and the possibility that his complaints would be

dismissed if he did not. See Agency's Request for Testimony (May 3,

2000), at 1-3. When the complainant failed to respond, the agency sent

him another letter, warning:

It is not possible to conduct a proper investigation without your

testimony. Failure to cooperate is grounds for dismissal . . . .

This letter constitutes notice of our intent to request that the EEOC

AJ dismiss [Discrimination Complaint Nos. 50-96 and 51-97] for failure to

cooperate unless you contact me to schedule your testimony within fifteen

(15) calendar days from receipt of this letter . . . .

Agency's Notice of Intent to Request Dismissal of Discrimination Complaint

Nos. 50-96 and 51-97 (May 18, 2000), at 1-2.

Soon after, complainant wrote AJ, stating:

I hereby withdraw the hearing request with respect to [Discrimination

Complaint Nos. 50-96 and 51-97]. In light of your pattern of misconduct,

which now extends to protecting probable criminal activity by staff of

[OEEO], you are not suited to preside over this (or any other) matter.

Indeed, your creative distortions of the written EEOC regulations and

Management Directive have carried this case far afield. You have acted

far beyond the intended powers and authority envisioned when the EEOC

revised the regulations. You recently �dismissed� a case [presumably

Discrimination Complaint Nos. 28-96 and 18-99] over which you had no

jurisdiction. The case had been removed from your jurisdiction four

days prior to the dismissal! Now, you creatively restyle an improper

remand into an �Abeyance Order� in which you state that the hearing [in

Discrimination Complaint Nos. 50-96 and 51-97] will be held in abeyance

for the Agency to complete its' investigation as ordered by the OFO.

You cite MD 110-Ch. 7, Sec. III.D.16 at 7-14 as authority for this action.

While it is true that cited portion of the Management Directive provides

a broad grant of discretion to administrative judges in managing

hearing cases, it does not provide the authority to remand a case for

investigation once a hearing has been requested. Your disingenuous

and unethical attempt to violate your agency's own regulations is quite

transparent. You cannot evade the rule against remands for investigation

by styling it an �Abeyance Order . . . .�

The agency in this case cannot do an impartial and complete investigation;

indeed, the [OEEO] could not be more corrupt. Note, for example,

that . . . OEEO tampered with and altered evidence in the record

submitted to your office. This is the most serious kind of fraud

upon the tribunal. It represents unethical conduct by the attorneys

involved and violations of the federal criminal laws by all involved.

Rather than take appropriate action to ferret out this unethical and

criminal misconduct and report it to authorities, you have chosen to

facilitate and abet such acts . . . .

I immediately withdraw my hearing request. I will notify the [agency]

this evening that I decline to extend the administrative processing time

past 180 days. Since such time has been exhausted, I will request a final

agency decision. I request that you disclose the detailed substance of

all discussions you have had with either my agency's representatives or

your superiors concerning the handling of this hearing matter. I further

request that you disclose all jurisdictions in which you maintain current

licenses to practice law.

Complainant's Letter Withdrawing Request for Hearing (May 23, 2000),

at 1-2.

The same day, complainant informed the agency that he had withdrawn

his hearing request and wanted an immediate final decision. He again

noted that the complaints had been pending for more than 180 days,

and asserted that:

[n]othing in the regulations permits any party or entity, including the

EEOC, to extend the time frame without the agreement of the other party

. . . . I do not agree to an extension of time for these or any other

complaints. Therefore, any action by you, the administrative judge, or

the EEOC, to dismiss this or any other 180-day-old complaint on grounds

of refusal to cooperate is a complete nullity. Instead, the [agency]

is to be faulted for not conducting a timely (and fair) investigation.

Further, my close study of the current management directive reveals

that the actions already taken in [Discrimination Complain Nos. 28-96

and 18-99] by [AJ] are beyond his authority. Similarly, your adoption

of his dismissal is also without legal authority or effect.

I recognize that you, with the active collusion of a corrupted EEOC staff,

are attempting to build a record of my lack of cooperation and failure

to prosecute. Your attempts, however, are transparently contrived.

I have always been willing to cooperate with a system and process which

meets the formal requirements for independence, neutrality and fairness.

Instead, you and your collaborators at the EEOC have breached the wall

to the point where your own staff are now filing false affidavits and

physically doctoring evidence. Such crimes are probably felonies under

the federal criminal code. [One OEEO official's] actions, moreover,

pose the likelihood of violations of the several ethical regimes under

which she practices. Indeed, she can now look forward to responding

to formal inquiries from the bar counsels in the states in which she

is licensed. This is also true for the administrative judge . . . .

As I said, I recognize that a number of federal courts have come down

very hard on complainants who fail to cooperate with the administrative

process. I remain firm in my belief, however, that the courts will grant

exceptions to this rule where there is convincing evidence of misconduct,

corruption and criminal wrongdoing injected into the administrative

process by the very people charged with overseeing and administering it

. . . .

Complainant's Email Notice to Agency of Withdrawal of Request for Hearing

(Mar. 23, 2000).

EEOC's Washington, D.C. Field Office also notified the agency that

complainant had withdrawn his request for a hearing, and that EEOC was

therefore closing its file on Discrimination Complaint Nos. 50-96 and

51-71. See EEOC's Letter Notifying Agency of Complainant's Withdrawal

of Request for Hearing (May 24, 2000). Soon after, on June 1, 2000,

the agency sent complainant a letter, informing him that:

We hereby dismiss [Discrimination Complaint Nos. 50-96 and 51-97] for

failure to cooperate. Your refusal to comply with our numerous attempts

to obtain your testimony renders it impossible for us to conduct an

investigation. This is a Final Agency Decision subject to appeal.

Agency's Notice of Dismissal of Discrimination Complaint Nos. 50-96 and

51-97 (June 1, 2000), at 1.

Complainant did appeal this final agency decision to this Commission.

See Complainant's Notice of Appeal of Final Agency Decision Dismissing

Discrimination Complaint Nos. 50-96 and 51-97 (June 17, 2000).

We accepted this appeal, and docketed it as EEOC Appeal No. 01A05012.

See Office of Federal Operations Letter Acknowledging Receipt of Appeal

(Jul. 18, 2000). It appears that complainant did not file any statement

in support of this appeal, however.

EEOC Appeal No. 01A01083 (Discrimination Complaint No. 04-96)

Complainant had filed another formal complaint with the agency on

January 5, 1996 alleging discrimination on the bases of disability, sex,

race, religion, and/or reprisal when the agency (1) did not select him,

during the summer and fall of 1991, for various attorney positions in

the agency's Division of Investment Management; (2) delayed in providing

him with a copy of his position description, and waited until the �last

minute� to respond to his request for an extension, in connection with a

grievance he filed over a performance appraisal; (3) �attempted to force

removal (and concomitant destruction) of work product essential to prior

EEO complaints�; and (4) obstructed his opportunity to �work comp time

and take or work credit hours.� See Discrimination Complaint No. 04-96

(Jan. 5, 1996), at 1, 3, 5, 7, 9.

The agency dismissed this complaint at first, finding that allegation

(1) was untimely, and that allegations (2), (3), and (4) failed to

state a claim. See Agency's Notice of Rejection of Discrimination

Complaint No. 04-96 (Apr. 18, 1996), at 4. Complainant appealed this

dismissal on May 20, 1996, however. See Notice of Appeal of Dismissal

of Discrimination Complaint No. 04-96 (May 20, 1996). We accepted this

appeal, and, in a decision issued on January 22, 1997, affirmed OEEO's

dismissal of the first three claims. See Koch v. Securities and Exchange

Commission, EEOC Appeal No. 01964312 (Jan. 22, 1997). However, we also

found that the agency's dismissal of the fourth allegation (i.e., the

claim concerning compensatory and credit time) was improper. We thus

remanded this allegation back to the agency for further processing.

See id.

Complainant filed a request for reconsideration of our decision.

See Complainant's Request for Reconsideration of EEOC Appeal No. 01964312

(Feb. 26, 1997). We denied this request, but reconsidered the decision

on our own motion. See Koch v. Securities and Exchange Commission,

EEOC Request No. 05970519 (Jul. 17, 1998). We then concluded that the

decision in EEOC Appeal No. 01964312 should be �affirmed, as modified.�

We ordered the agency to process allegation (4) of Discrimination

Complaint No. 04-96 by issuing complainant a copy of the investigative

file (and notifying him of his appropriate rights) within 150 days from

the date the reconsideration decision became final. See id. Soon after,

the agency sent complainant a letter indicating that it was processing

the compensatory/credit time allegation, and would issue a copy of the

investigative file to him by December 14, 1998. See Agency's Letter to

Complainant Concerning Investigation of Discrimination Complaint No. 04-96

(Aug. 5, 1998), at 1; see also Agency's Memorandum Requesting Testimony

on Discrimination Complaint Nos. 04-96 and 50-96 (Sept. 2, 1998); and

Agency's Letter Again Requesting Testimony on Discrimination Complaint

Nos. 04-96 and 50-96 (Sept. 17, 1998) (two documents demonstrating the

interconnected procedural history of the instant appeals, and in which

the agency informs complainant of its intention to complete jointly

investigate certain aspects of Discrimination Complaint Nos. 50-96

and 04-96).

The agency did in fact complete its investigation by that date.

On December 14, 1998, it sent complainant a copy of its investigative

file, and informed him of his right either to request a hearing before

an EEOC administrative judge, or to receive an immediate final decision

from the agency. See Agency's Letter Remitting Investigative File to

Complainant and Informing Him of His EEO Rights (Dec. 14, 1998), at 1.

Complainant responded to OEEO with a formal request for a hearing before

an EEOC administrative judge. See Complainant's Request for Hearing

(Jan. 13, 1999), at 1.<11> The administrative judge appointed to hear

the matter (�AJ2�) subsequently issued an order indicating that he was

considering summary judgment of the claim, authorizing the parties to

commence discovery, and requiring them to meet to discuss the possibility

of settlement. See AJ2's Revised Acknowledgment Order and Order Regarding

Discovery and Summary Judgment (May 24, 1999), at 2-4.

Accordingly, the agency requested that complainant meet on June 17, 1999

to address prospects for settlement. See Agency's Email to Complainant

Proposing Settlement Discussion Date (June 9, 1999). The day before this

settlement discussion was to take place, however, complainant emailed the

agency informing it that he would not be attending the meeting after all.

Complainant stated:

While I remain willing and ready to seriously discuss settlement of

any and all pending matters, I cannot and will not participate in

a process so tainted by fraud, illegality and unethical conduct by

[agency] and EEOC personnel . . . . I notice that the Administrative

Judge . . . apparently has already decided to issue summary judgment in

the agency's favor notwithstanding the true facts of the case or the

actual definition of the allegation at issue. His illegal conduct is

blatant and obvious, as is the serious misconduct carried out by the

[OEEO] . . . . Should you wish to rectify the matter by disclosing in

detail and in writing, a complete history of all contacts between any

part of the [agency] and the EEOC over this matter, this would be an

important first step toward righting what has become a fatally-corrupted

administrative process . . . . I do not take this action lightly � nor

do I make the above allegations lightly � the orders of an administrative

judge ordinarily are not a trivial matter. Neither is illegal conduct,

however, particularly when it is of an institutional nature. Just to be

very clear � once again � I accuse the [agency] and the EEOC of illegal

collusion, ex parte contacts, and fraud.

Complainant's Email to Agency Rejecting Proposed Settlement Meeting

(June 16, 1999).

The agency informed AJ2 that complainant declined to engage in settlement

talks. See Agency's Letter to AJ2 (June 17, 1999). It thereafter

mailed complainant a notice scheduling his deposition for June 25, 1999.

See Agency's Notice of Deposition (June 17, 1999). Despite several agency

reminders about this impending deposition, however, complainant never

appeared.<12> See Agency's Statement Indicating Complainant's Failure

to Attend Deposition (June 25, 1999). In response, the agency, on July

2, 1999, filed a motion with AJ2 requesting that AJ2 order complainant

to reimburse the agency for the costs it incurred when complainant

failed to appear at his deposition, and make himself available for

deposition by agency counsel. See Agency's Motion to Order Complainant

to Reimburse Agency for Costs and Make Himself Available for Deposition

(Jul. 2, 1999).<13> AJ2 denied the agency's motion for reimbursement of

costs, but did grant its motion to compel complainant to give testimony.

AJ2 ordered complainant to appear to have his deposition taken by July

30 at the latest, and also instructed the agency to file a motion to

remand the matter to the agency for dismissal for failure to cooperate

should complainant again fail to appear for this deposition. See AJ2's

Notice & Order (Jul. 20, 1999).

The agency then served complainant with another deposition notice,

attempting to schedule the testimony for July 26. See Agency's Notice of

Deposition (Jul. 20, 1999). Complainant responded by telling the agency

that it was precluded from conducting any discovery and prohibited from

taking his testimony. See Complainant's Letter to Agency Disputing

the Agency's Authority to Take His Deposition (Jul. 20, 1999).<14>

The agency replied by reminding him that he had been ordered by AJ2 to

give testimony, and urging him to comply with this order by appearing

on July 26, 1999 for the scheduled deposition. See Agency's Email

to Complainant Urging His Appearance at Deposition (Jul. 21, 1999).

Complainant then claimed that AJ2 had �clearly and grossly abused his

discretion� in ordering his testimony in the first place, and repeated

that he would �not attend the deposition.� Complainant's Letter Accusing

AJ2 of Abuse of Discretion in Ordering His Deposition (Jul. 21, 1999).

Complainant failed to appear at the appointed time and place to have

his testimony taken. See Agency's Statement Indicating Complainant's

Failure to Attend Deposition (Jul. 26, 1999).

The agency promptly filed a motion to dismiss the complaint for failure

to cooperate. In this motion, the agency said it was doing so:

because [complainant] refused to respond to the Agency's document and

interrogatory requests, and because the Agency twice arranged to depose

[him] and [he] twice failed to appear. [He] further received notice from

[AJ2] that his complaint would be remanded to the Agency for dismissal if

he failed to cooperate; [complainant's] conduct in failing to cooperate

was contumacious; and the record is insufficient to adjudicate his

complaint.

Agency's Motion to Dismiss Discrimination Complaint No. 04-96 for

Complainant's Failure to Cooperate Or, in the Alternative, Motion for

Findings and Conclusions without a Hearing (Aug. 20, 1999), at 2.

AJ2 responded by recommending that the complaint indeed be dismissed due

to complainant's failure to cooperate. See AJ's Order Recommending That

Discrimination Complaint No. 04-96 Be Dismissed for Failure to Cooperate

(Aug. 25, 1999), at 1. In a final agency decision dated October 25,

1999, the agency adopted AJ2's recommended ruling. See Agency's Final

Decision Adopting AJ2's Recommended Decision and Dismissing Discrimination

Complaint No. 04-96 for Failure to Cooperate (Oct. 25, 1999).

Complainant appealed this final agency action on November 24, 1999.

See Complainant's Notice of Appeal of Agency's Final Decision Dismissing

Discrimination Complaint No. 04-96 (Nov. 24, 1999). We accepted this

timely appeal, and docketed it as EEOC Appeal No. 01A01083. See Office of

Federal Operations Letter Acknowledging Receipt of Appeal (Nov. 30, 1999).

In complainant's statement in support of his appeal,<15> he rejected

AJ2's and the agency's allegations that he had refused to cooperate in

the processing of the complaint. He argued that:

[AJ2] conducted himself and the proceedings in a manner that demonstrated

obvious bias and favoritism to the agency [and] . . . I was clearly

prejudiced by [his] one-sided accommodations to the agency . . . . [AJ2's]

actions lead inevitably to the conclusion that his contact with the

[agency's] representative went far beyond any allowable discussions of

simply procedural questions. It was obvious to me upon participating

in a conference with [AJ2] and the [agency] attorney that there had

been more than simply procedural discussions � it was quite clear that

there had been joint strategizing or cooperation of some sort by [AJ2]

and the agency.

Complainant's Statement in Support of Appeal of Agency's Final Decision

Dismissing Discrimination Complaint No. 04-96 (Jan. 24, 2000), at 1-2.

Complainant then conceded that it was not �necessary at this point

to address the merits of the underlying complaint,� and that �[t]he

case should simply be returned to the agency for further processing.�

Id. at 2.

ANALYSIS AND FINDINGS

We have delineated the multitudinous developments surrounding the

instant appeals because we believe these facts speak for themselves.

Applicable law provides that a complainant's failure to cooperate in

the processing of an EEO allegation can, under certain circumstances,

justify the dismissal of his or her discrimination complaint. Such a

dismissal is justifiable for all five complaints at issue here.

Indeed, if there is one common theme running throughout all of these

appeals, it is complainant's disturbing disregard for the authority

of agency and EEOC officials, and his indefensible (if consistent)

failure to cooperate in the investigation and adjudication of

his claims. Complainant repeatedly refused to respond either to

agency or administrative judge orders for documents and testimony.

Instead, he engaged in procedural wrangling with EEO personnel (e.g.,

first criticizing the agency's failure to conduct a thorough agency

investigation, then staving off attempts to gather necessary information,

next asking for a hearing, then withdrawing the hearing petition).

Moreover, complainant leveled personal attacks against both agency and

EEOC employees, and even threatened such officials with professional

and criminal retaliation.

A complainant engages in this sort of defiant disobedience at his own

risk. Under 29 C.F.R. � 1614.107(a)(7), a complaint may be dismissed

if �the agency has provided the complainant with a written request to

provide relevant information or otherwise proceed with the complaint, and

the complainant has failed to respond to the request within 15 days of

its receipt or the complainant's response does not address the agency's

request, provided that the request included a notice of the proposed

dismissal.� 29 C.F.R. � 1614.107(a)(7); see also Braide v. United

States Postal Service, EEOC Appeal No. 01A14211 (Oct. 4, 2001); Alcocer

v. Department of the Treasury, EEOC Appeal No. 01A14542 (Sept. 27, 2001);

and Henning v. United States Postal Service, EEOC Appeal No. 01A04924

(Sept. 19, 2001). We have been reluctant to permit the use of this potent

dismissal authority, however, and have limited its application to cases

where there is a clear record of delay or �contumacious conduct� by the

complainant.<16> See, e.g., Laity v. Department of Veterans Affairs,

EEOC Request No. 05990104 (Aug. 16, 2001); Dogans v. Department of Housing

and Urban Development, EEOC Appeal Nos. 01991560 and 01993253 (May 31,

2000); Card v. United States Postal Service, EEOC Request No. 05970095

(Apr. 23, 1998); Anderson v. United States Postal Service, EEOC Request

No. 05940850 (Feb. 24, 1995); and Kroeten v. United States Postal Service,

EEOC Request No. 05940451 (Dec. 22, 1994).

While this ability to dismiss a complaint under 29 C.F.R. � 1614.107(a)(7)

is most typically used by an agency itself in dismissing a complaint,

EEOC administrative judges may also invoke this power. See 29 C.F.R. �

1614.109(b) (stating that �[a]dministrative judges may dismiss complaints

pursuant to 29 C.F.R. � 1614.107, on their own initiative, after notice to

the parties, or upon an agency's motion to dismiss a complaint�). We have

held, however, that the rather drastic 29 C.F.R. � 1614.107(a)(7) rule

�is only available to an AJ as a sanction when the complainant fails to

comply with an agency request for relevant information.� Gomes v. United

States Postal Service, EEOC Appeal No. 01A05725 (Oct. 2, 2001) [emphasis

added], citing Hale v. Department of Justice, EEOC Appeal No. 01A03341

(Dec. 8, 2000). If administrative judges seek to dismiss a complaint for

a complainant's failure to comply with an administrative judge's order,

then �AJs should avail themselves of the sanction provisions contained

within 29 C.F.R. � 1614.109(f)(3). Id. That regulation, in turn,

empowers administrative judges to take whatever actions are appropriate

� up to and including dismissal of a complaint � when a complainant

fails without good cause to respond fully and in timely fashion to an

administrative judge's order. See, e.g., 29 C.F.R. � 1614.109(f)(3)(v).

Such 29 C.F.R. � 1614.109(f)(3) sanctions must be tailored in each

case to appropriately address the underlying conduct of the party being

sanctioned. We have stated in the past that �[i]f 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.�

Gomes v. United States Postal Service, EEOC Appeal No. 01A05725 (Oct. 2,

2001), citing Hale v. Department of Justice, EEOC Appeal No. 01A03341

(Dec. 8, 2000). We have also ruled that �[d]ismissal of a complaint

by an AJ as a sanction,� specifically, �is only appropriate in extreme

circumstances, where the complainant has engaged in contumacious conduct

. . . .� Id.; see also Edwards v. United States Postal Service, EEOC

Appeal No. 01A04965 (Oct. 4, 2001); Marie v. Department of Transportation,

EEOC Appeal No. 01990423 (Sept. 20, 2001); and Reed v. United States

Postal Service, EEOC Appeal No. 01A05039 (Jan. 3, 2001).

Thus, whether a complaint is to be dismissed under 29 C.F.R. �

1614.107(a)(7) or 29 C.F.R. � 1614.109(f)(3)(v), �contumacious conduct�

is required. Black's Law Dictionary has defined �contumacious conduct�

as �wilfully stubborn and disobedient conduct . . . .� Black's Law

Dictionary (6th ed. 1990); see also Covin v. United States Postal

Service, EEOC Appeal No. 01A10941 (Oct. 18, 2001) (a recent EEOC

appellate decision adopting this Black's Law Dictionary definition in

examining the propriety of a dismissal for a complainant's failure to

cooperate); and Equal Employment Opportunity Management Directive for 29

C.F.R. Part 1614 (rev. Nov. 9, 1999) (�EEO-MD-110�), at 7-25 (providing

that �[c]ontumacious . . . conduct may include any unprofessional or

disrespectful behavior . . . [and/or] degrading, insulting or threatening

verbal remarks or conduct . . . .�); cf. Random House Webster's Unabridged

Dictionary (2nd ed. 1999) (defining �contumacious� as �stubbornly perverse

or rebellious; willfully and obstinately disobedient�); and The American

Heritage Dictionary of the English Language (4th ed. 2000) (defining

�contumacious� as �obstinately disobedient or rebellious; insubordinate�).

Unfortunately for complainant, the relevant facts reveal just this sort

of disrespectful demeanor, obstinate disobedience, and wilful stubbornness

that demand dismissal of all of his five complaints.

Consider Discrimination Complaint Nos. 28-96 and 18-99, for example.

These complaints were dismissed by AJ for complainant's failure to

respond to the agency's requests for information about the claims raised

in the complaint. The agency sent at least three such separate requests

to complainant in connection with Discrimination Complaint No. 28-96

alone. See Agency's Letter to Complainant Reinitiating Investigation

of Discrimination Complaint No. 28-96 (Dec. 20, 1999); Agency's Email to

Complainant Requesting Testimony (Mar. 6, 2000); and Agency's Notice of

Intent to Dismiss Discrimination Complaint No. 28-96 (Mar. 13, 2000).

This last attempt explicitly warned that �[t]his letter constitutes

notice of our intent to dismiss [Discrimination Complaint No. 28-96]

for failure to cooperate unless you contact us, within fifteen (15)

days after receiving this letter, to schedule your testimony, or to

notify us of your intent to pursue the matter before EEOC.� Id. at 1.

This warning notwithstanding, complainant never did respond to the

agency's request within 15 days � or at any subsequent time.<17>

Similarly, the agency made repeated written pleas for information

believed to be essential to an evaluation of the allegations raised in

Discrimination Complaint No. 18-99, as well. See, e.g., Agency's Letter

to Complainant Requesting Details Concerning Discrimination Complaint

No. 18-99 (Nov. 2, 1999). It issued two separate �15 day dismissal�

warnings along with such requests. See Agency's Notice of Intent to

Dismiss Discrimination Complaint No. 18-99 (Mar. 6, 2000); and Agency's

Final Notice of Intent to Dismiss Discrimination Complaint No. 18-99

(Mar. 13, 2000).<18> Nevertheless, complainant refused to supply the

information the agency had requested, first claiming that the agency's

initial plea had gotten lost in the mail, then challenging the agency's

authority to even investigate the complaint, and finally requesting a

hearing before an AJ (in an apparent attempt to block the agency's very

ability to dismiss his complaint). See Complainant's Email Response to

Agency's Notice of Intent to Dismiss (Mar. 6, 2000); and Complainant's

Letter Requesting Hearings (Mar. 21, 2000). Even after AJ consolidated

Discrimination Complaints Nos. 28-96 and 18-99 and ordered complainant to

respond to the agency's requests (or risk an AJ dismissal), complainant

still refused to cooperate within the AJ-prescribed time period. Instead,

he simply ignored AJ's order (claiming it was �not legal�), accused

AJ and agency officials of �possible criminal and unethical conduct

of the most serious kind� and of engaging in ex parte communications

(without specifying in any detail how or what the nature of such conduct

or communications were), and then withdrew his request for an AJ hearing.

See Complainant's Response to Agency's Motion to Dismiss (May 4, 2000),

at 1-2.<19>

There was a similar pattern of obstruction and obfuscation by complainant

during the processing of Discrimination Complaint Nos. 50-96 and 51-97

(ultimately dismissed by the agency itself, this time). Several agency

attempts at gathering critical evidence were ignored at every turn. See,

e.g., Agency's Memorandum Requesting Testimony on Discrimination Complaint

Nos. 04-96 and 50-96 (Sept. 2, 1998); Agency's Letter Again Requesting

Testimony on Discrimination Complaint Nos. 04-96 and 50-96 (Sept. 17,

1998); Complainant's Email Response to Agency's Request for Testimony

(Sept. 17, 1998); and Agency's Request for Testimony (May 3, 2000),

at 1-3. Agency and AJ efforts to push the investigations forward were

thwarted by complainant's delaying procedural tactics (e.g., disputing

the agency's jurisdiction to investigate, demanding and subsequently

withdrawing a request for a hearing, etc.). See, e.g., Complainant's

Email Request for Hearing (Oct. 8, 1998); Agency's Acknowledgment of

EEOC's Remand of Discrimination Complaint No. 50-96 (Mar. 23, 2000);

Agency's Acknowledgment of EEOC's Remand of Discrimination Complaint

No. 51-97 (Mar. 23, 2000); Complainant's Email Response to Agency's

Acknowledgment of EEOC's Remand (Mar. 23, 2000); Agency's Response to

Complainant's Email Dated Mar. 23, 2000 (Mar. 23, 2000); Complainant's

Request for Hearing (Apr. 3, 2000); and Complainant's Letter Withdrawing

Request for Hearing (May 23, 2000). And a written agency �15 day warning�

informing complainant of the agency's intention to seek dismissal of the

relevant complaints went, yet again, unheeded.<20> See Agency's Notice

of Intent to Request Dismissal of Discrimination Complaint Nos. 50-96

and 51-97 (May 18, 2000). Instead, complainant refused to acknowledge

the jurisdiction of either the agency or AJ to adjudicate the complaint,

and levied additional personal and professional attacks against them.

See, e.g., Complainant's Email Notice to Agency of Withdrawal of Request

for Hearing (Mar. 23, 2000) (stating without any support that OEEO and

EEOC personnel had violated �several ethical regimes� and committed

�felonies,� threatening AJ and one OEEO official with bar sanctions,

and declaring that �any action by [the agency], the administrative judge,

or the EEOC, to dismiss this or any other 180-day-old complaint on grounds

of refusal to cooperate is a complete nullity�); and Complainant's Letter

Withdrawing Request for Hearing (May 23, 2000), at 1-2 (asserting without

any proof that OEEO had tampered with evidence and �could not be more

corrupt,� alleging that AJ was �not suited to preside over this (or any

other) matter,� and accusing AJ of a �pattern of misconduct, which now

extends to protecting probable criminal activity by staff of [OEEO]� and

of �facilitating and abetting� �unethical and criminal misconduct�).<21>

Likewise, before the agency dismissed Discrimination Complaint

04-96, complainant had rejected settlement negotiations and ignored

interrogatories and requests for documents � all in violation of AJ2's

express directives. See, e.g., Complainant's Email to Agency Rejecting

Proposed Settlement Meeting (June 16, 1999); Agency's Motion to Dismiss

Discrimination Complaint No. 04-96 for Complainant's Failure to Cooperate

Or, in the Alternative, Motion for Findings and Conclusions without a

Hearing (Aug. 20, 1999); and AJ2's Revised Acknowledgment Order and Order

Regarding Discovery and Summary Judgment (May 24, 1999). He had also

(at least twice) refused to let the agency take his testimony, even after

AJ2 explicitly ordered him to do so. See Agency's Statement Indicating

Complainant's Failure to Attend Deposition (June 25, 1999); AJ2's Notice &

Order (Jul. 20, 1999); and Agency's Statement Indicating Complainant's

Failure to Attend Deposition (Jul. 26, 1999). Instead, and in lieu of

cooperating, he disputed the very legitimacy of the agency's requests

for information, challenged AJ2's authority to compel his deposition,

alleged (without corroborative detail) a �fatally corrupted administrative

process,� and accused (without substantiating evidence) the agency and

AJ2 of �illegal collusion, ex parte contacts, and fraud.� See, e.g.,

Complainant's Letter Accusing AJ2 of Abuse of Discretion in Ordering His

Deposition (Jul. 21, 1999) (accusing AJ2 of �clearly and grossly abusing

his discretion�); Complainant's Letter to Agency Disputing the Agency's

Authority to Take His Deposition (Jul. 20, 1999) (claiming the agency had

failed to follow procedural rules); and Complainant's Email to Agency

Rejecting Proposed Settlement Meeting (June 16, 1999) (alleging that

the process was �tainted by fraud, illegality and unethical conduct by

[agency] and EEOC personnel,� and that AJ2 had engaged in �blatant and

obvious illegal conduct�).<22>

The agency pointed out in one of its motions that, �[i]n a number of

similar cases over the years, [complainant] has failed to prosecute

his claims, cooperate with the Agency's investigation and appear

for testimony. In response to these previous failures to cooperate,

adverse actions have been taken against [him]. He therefore is well

aware that adverse sanctions may be imposed as a result of his failure

to comply in this matter.� Agency's Motion to Dismiss Discrimination

Complaint Nos. 28-96 and 18-99 (May 4, 2000), at 1 note 2. Nevertheless,

complainant has persisted in stubbornly, and wilfully, disrupting the

orderly investigation of the claims he himself has raised. We find that

this kind of evasive, methodical stonewalling � in conjunction with

the vituperative, baseless ad hominem attacks complainant has levied

on agency and EEOC officials � is exactly the kind of �contumacious

conduct� that compels dismissal of a complainant's complaint. See, e.g.,

Catella v. General Services Administration, EEOC Request No. 05A10696

(Sept. 20, 2001) (upholding an AJ dismissal due to failure to cooperate

and contumacious conduct where a complainant failed to respond to

agency discovery requests and a subsequent AJ order compelling her

compliance with such requests); Klatt v. United States Postal Service,

EEOC Appeal No. 01A00645 (Jul. 20, 2001) (affirming an agency finding

of failure to cooperate and contumacious conduct where a complainant

refused to respond to two agency requests for affidavits); and Bradford

v. United States Postal Service, EEOC Appeal No. 01A02501 (Dec. 22, 2000)

(similarly upholding an agency dismissal due to contumacious conduct

where a complainant failed to respond to repeated agency requests

for information, and noting that �without the complainant's affidavit

fully setting forth the circumstances and details of her complaint, the

investigator's attempts to obtain anything more than general background

information and evidence from the agency would have been largely

ineffective�); cf. Bennett v. Department of the Navy, EEOC Request

No. 05980746 (Sept. 19, 2000) (ruling that a complainant had engaged

in �contumacious conduct� during a hearing by, among other things,

�impugning the administrative judge's character,� �showing disrespect

for the agency's attorneys,� and �making personal and unprovoked attack

on participants in the hearing�).

CONCLUSION

Accordingly, we find that (1) AJ's dismissal of Discrimination Complaint

Nos. 28-96 and 18-99 pursuant to 29 C.F.R. � 1614.107(a)(7) and 29

C.F.R. � 1614.109(b) (as well as the agency's adoption of these AJ

dismissals); (2) the agency's dismissal of Discrimination Complaint

Nos. 50-96 and 51-97 pursuant to 29 C.F.R. � 1614.107(a)(7); and (3) AJ2's

recommended dismissal of Discrimination Complaint No. 04-96 pursuant to

29 C.F.R. � 1614.109(f)(3) (as well as the agency's implementation of this

recommended dismissal) should all, in their entirety, be affirmed.<23>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if 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 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; see also EEO MD-110, at 9-18. 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 the

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with the 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)

Complainant has the right to file a civil action in an appropriate

United States District Court within ninety (90) calendar days from the

date that complainant receives this decision. If complainant files a

civil action, complainant 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 complainant's case in court. �Agency� or

�department� means the national organization, and not the local office,

facility or department in which complainant works. If complainant files

a request to reconsider and also files a civil action, filing a civil

action will terminate the administrative processing of the complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If complainant decides to file a civil action, and if complainant does

not have or cannot afford the services of an attorney, complainant may

request that the Court appoint an attorney to represent complainant and

that the Court permit complainant 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 complainant's 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

December 21, 2001

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1Soon after, complainant sent an email to another agency EEO official

accusing the official of �trying to hide something� from complainant.

Complainant requested that the EEO official �provide me with a complete

list of your bar admissions, inasmuch as I believe I have an affirmative

obligation to inform not only the tribunal, but the relevant disciplinary

authorities of the possibility of your attempting to mislead the EEOC

Hearing Office in this matter . . . .� Complainant's Email to Agency

(Apr. 4, 2000).

2This letter also noted that complainant �has two others matters

([Discrimination Complaint] Nos. 50-96 and 51-97) pending agency

investigations. We are under an EEOC Order to complete our investigation

of [50-96] by August 18, 2000, and have consolidated [No. 51-97]

therewith. We are awaiting Complainant's response to our 15-day

dismissal notice prior to consolidating [Nos. 18-99 and 28-96] with

the other cases. Now that Complainant has requested a hearing on two

of the complaints, please advise as to how we should proceed, given the

mandatory consolidation provisions, 29 CFR 1614.606.� Agency's Letter

to EEOC Hearings Unit (Apr. 6, 2000).

3The agency alleged that �[i]n a number of similar cases over the years,

[complainant] has failed to prosecute his claims, cooperate with the

Agency's investigation and appear for testimony. In response to these

previous failures to cooperate, adverse actions have been taken against

[him]. He therefore is well aware that adverse sanctions may be imposed

as a result of his failure to comply in this matter.� Agency's Motion

to Dismiss Discrimination Complaint Nos. 28-96 and 18-99 (May 4, 2000),

at 1 note 2.

4AJ also stressed that complainant �made several objections concerning

the handling of his cases by EEOC, and asserted that EEOC has engaged in

ex parte communications with the Agency. Complainant also accused the

Agency of tampering with and falsifying evidence, and engaging in criminal

and unethical conduct. Complainant's virulent comments concerning

EEOC's processing of his complaints are without basis and display a

contumaciousness that further warrants dismissal of the complaints.�

AJ's Order Dismissing Complaints (May 8, 2000), at 2-3 note 3.

5 In this fax, complainant asserted that the proper date of service for

the final agency action should be May 24, 2000, since (1) it had been

hand-delivered during the week of May 15, 2000 to complainant's office

but complainant had been away from work that entire week; (2) it had

been faxed to his home fax machine on May 18, 2000 but �was only partly

legible [since his] home fax machine is an old thermal fax machine and

. . . needs a new ink roller�; and (3) he did not receive the relevant

notice of dismissal until it arrived in his post office box on May

24, 2000. See Complainant's Notice of Appeal of Agency's Dismissal of

Discrimination Complaint Nos. 28-96 and 18-99 (June 19, 2000), at 1.

6Complainant actually requested extensions of time related to various

appeals pending before EEOC. He stated �I previously filed an appeal

of a decision issued by the [agency] . . . on or about May 12, 2000.

I recall seeking and being granted a one month extension to file a

written statement in support of the appeal. Such extensions would

take me through today, I believe. I request another extension . . . .

I also recall filing another appeal of a decision issued by the [agency].

I believe the [agency] failed to provide me with the proper form, so

I filed my appeal in the form of a letter. I request an extension of

the time to file a supporting statement. Finally, I recall receiving

another . . . agency decision, which was issued on or about June 1,

2000. I recently wrote your office seeking a 15 day extension of the

time to file an appeal.� Complainant's Faxed Request for Extension

of Time to File Brief in Support of EEOC Appeal No. 01A04600 (Jul. 12,

2000). Complainant could not describe the relevant appeals with greater

specificity, allegedly because he had lost all related documentation in

a recent move, and because the agency's OEEO �has contributed greatly to

problems of maintaining proper and accessible records . . . .� Id. at 2.

7More specifically, the agency agreed to investigate complainant's claims

that the agency had retaliated against him when it gave him a �lower

than deserved� performance appraisal (and when it failed to provide him

with any interim review whatever), and when the Office of the Inspector

General conducted an allegedly unfair and biased investigation. The rest

of the claims raised in Discrimination Complaint No. 50-96 were rejected.

See Agency's Notice of Acceptance/Rejection of Discrimination Complaint

No. 50-96 (Mar. 5, 1997).

8The agency apparently had first given complainant the opportunity to

show cause why the complaint should not be dismissed. See Agency's

Request to Show Cause Why Discrimination Complaint No. 50-96 Should Not

Be Dismissed As Untimely (Dec. 17, 1998), at 1. However, complainant

did not respond showing cause by the deadline set by the agency, and

the agency therefore dismissed the complaint.

9Complainant proceeded to request two separate extensions of time to

file a brief in support of his appeal (allegedly due to his �serious

medical condition, obstructive sleep apnea,� which apparently prevented

him from complying with relevant regulatory time frames, and due to his

�extraordinarily heavy workload� at the agency). See Complainant's First

Request for Extension (Mar. 10, 1999) and Complainant's Second Request

for Extension (Apr. 9, 1999). We granted both extensions (even though

complainant's second request was actually submitted after the initial

extended deadline, and even though the agency had filed a formal objection

to complainant's second request for extension). See EEOC's First Grant

of Extension (Mar. 16, 1999); EEOC's Second Grant of Extension (Apr. 13,

1999); and Agency's Opposition to Complainant's Untimely Second Request

for Extension of Time (Apr. 13, 1999). Complainant ultimately did

submit a statement in support of his appeal of the agency's dismissal

of Discrimination Complaint No. 50-96. See Complainant's Statement in

Support of EEOC Appeal No. 01992500 (Apr. 18, 1999).

10See note 7, above.

11Complainant had actually requested a hearing before an administrative

judge some months earlier. See Complainant's Email Requesting Hearing

(Sept. 25, 1998) (in which complainant announced his �formal request that

this case go to hearing before an administrative judge,� and demanded

that �all investigative activity should be terminated, notwithstanding

the EEOC order [to complete the investigation of Discrimination Complaint

No. 04-96 by December 14, 1998]�). The agency responded at the time by

denying this hearing request, since the request was �premature� (given

the agency's EEOC-ordered obligation to complete its investigation of

the outstanding allegation). See Agency's Response to Complainant's

Request for Hearing (Oct. 8, 1998).

12The agency alleges that because complainant had �a long history of

failing to attend meetings and hearings, and failing to cooperate in

discovery, Agency counsel telephoned and e-mailed [him] on several

occasions prior to June 25 to remind him of the deposition and urge

him to attend� � all, apparently, to no avail. See Agency's Motion to

Dismiss Discrimination Complaint No. 04-96 for Complainant's Failure to

Cooperate Or, in the Alternative, Motion for Findings and Conclusions

without a Hearing (Aug. 20, 1999), at 4; see also Agency's Email to

Complainant Reminding Him of Deposition (June 23, 1999); Agency's Email

to Complainant Requesting He Bring Report of Investigation to Deposition

(June 24, 1999); and Agency's Email to Complainant Asking Whether He

Will Attend Deposition (June 25, 1999).

13At or around the same time, the agency also tried to serve complainant

with several interrogatories and document requests. See Agency's First

Set of Interrogatories and Requests for Production of Documents (Jul. 6,

1999). Complainant did not respond to these either.

14More specifically, complainant asserted that �EEOC Management Directive

110, 6-10, states that, �[i]n order to conduct discovery, a party must

file, within ten (10) calendar days of the receipt of the acknowledgment

order, either a stipulation of the parties permitting discovery or a

motion to conduct discovery with the administrative judge'. Because

you did not file a stipulation of the parties or a motion to conduct

discovery, you are now precluded from conducting discovery. Therefore,

you are not now permitted to schedule a deposition to take my testimony.�

See Complainant's Letter to Agency Disputing the Agency's Authority to

Take His Deposition (Jul. 20, 1999). In a follow-up letter clarifying

this reasoning, complainant stated that �[a]lthough administrative

judges generally have a great deal of discretion in the conduct of the

hearing process, there is nothing which permits the administrative judge

to deviate from [the requirement to file a stipulation of the parties

permitting discovery or a motion to conduct discovery]. His order,

therefore, is an abuse of discretion.� Complainant's Letter Accusing

AJ2 of Abuse of Discretion in Ordering His Deposition (Jul. 21, 1999).

15Complainant requested, and we granted, a one-month extension to file an

appeal brief. See Complainant's Request for Extension to File Statement

in Support of Appeal (Dec. 22, 1999); and Office of Federal Operations

Grant of Complainant's Request for Extension (Dec. 28, 1999).

16We have also held that, as a general rule, a complaint should not be

dismissed under 29 C.F.R. � 1614.107(a)(7) unless there is insufficient

evidence in the record to enable a proper adjudication of the complaint.

See 29 C.F.R. � 1614.107(a)(7); see also Edwards v. United States Postal

Service, EEOC Appeal No. 01A04965 (Oct. 4, 2001); Derrick v. Department

of Defense, EEOC Appeal No. 01A02790 (Aug. 28, 2001); and Balogh v. United

States Postal Service, EEOC Appeal No. 01991042 (June 27, 2000).

17In this letter, the agency also had acknowledged complainant's request

for an immediate final agency decision without an investigation.

However, the agency wrote, �[w]e do not believe that a final agency

decision on the merits is possible without your testimony. Accordingly,

if that is what you would like, we will need to schedule your testimony

at your earliest convenience.� Agency's Notice of Intent to Dismiss

Discrimination Complaint No. 28-96 (Mar. 13, 2000), at 1.

18Again, the agency told complainant that it did not have enough

information to properly evaluate or adjudicate the claims raised

in Discrimination Complaint No. 18-99. Hence its repeated pleas

for complainant's cooperation. See Agency's Letter to Complainant

Requesting Details Concerning Discrimination Complaint No. 18-99

(Nov. 2, 1999); Agency's Notice of Intent to Dismiss Discrimination

Complaint No. 18-99 (Mar. 6, 2000); and Agency's Final Notice of Intent

to Dismiss Discrimination Complaint No. 18-99 (Mar. 13, 2000).

19AJ dismissed these complaints for a failure to comply with an agency

order. See AJ's Order Dismissing Discrimination Complaint Nos. 28-96

and 18-99 (May 8, 2000), at 3 (�Complainant did not . . . comply with

any of the directives in the Order by providing the Agency a response

to the dismissal notices.�) Thus, AJ's dismissal will be upheld

if the regulatory prerequisites under 29 C.F.R. � 1614.107(a)(7)

are met. Given the particular facts just presented, we find that

these prerequisites � (1) a written request from the agency seeking

cooperation from complainant in processing the complaint at issue;

(2) an accompanying warning that failure to comply with the request

could lead to dismissal of the complaint; (3) a refusal by complainant

to satisfactorily comply with this written request; and (4) a lack of

evidence enabling independent adjudication of the complaint � have all

been met here. See 29 C.F.R. � 1614.107(a)(7). In the alternative,

AJ could be viewed as having dismissed these complaints for a failure to

comply with AJ's own orders. See AJ's Order Dismissing Discrimination

Complaint Nos. 28-96 and 18-99 (May 8, 2000), at 3 (�Complainant has

demonstrated an unwillingness to cooperate in the processing of his case

by flouting my Order to Show cause.�). In such a case, his dismissal

can only be upheld if the requirements of 29 C.F.R. � 1614.109(f)(3)(v)

are met. Based on the record described above � and our reading of 29

C.F.R. � 1614.109(f)(3)(v) � we believe such requirements have also been

met here.

20The agency issued this warning, as noted above, because it believe

it was �not possible to conduct a proper investigation without

your testimony.� Agency's Notice of Intent to Request Dismissal of

Discrimination Complaint Nos. 50-96 and 51-97 (May 18, 2000), at 1.

21The agency itself dismissed Discrimination Complaint Nos. 50-96 and

51-97. See Agency's Notice of Dismissal of Discrimination Complaint

Nos. 50-96 and 51-97 (June 1, 2000). Thus, its dismissal can only be

affirmed if the standards of 29 C.F.R. � 1614.107(a)(7) are satisfied.

We conclude that, on the record just reviewed, such standards have indeed

been satisfied here. Cf. note 19, above.

22AJ2 did not dismiss Discrimination Complaint No. 04-96 for complainant's

failure to comply with an agency request. He dismissed it for

complainant's general refusal to cooperate (demonstrated most starkly

when complainant ignored, without excuse, AJ2's final order to attend a

deposition). See AJ's Order Recommending That Discrimination Complaint

No. 04-96 Be Dismissed for Failure to Cooperate (Aug. 25, 1999). Thus,

the dismissal of this complaint should not be analyzed under 29 C.F.R. �

1614.107(a)(7), but rather under 29 C.F.R. � 1614.109(f)(3)(v). Based on

the circumstances culminating in AJ2's dismissal � and our reading of

29 C.F.R. � 1614.109(f)(3)(v) � we believe that AJ2 properly elected

dismissal as the appropriate sanction in this case (notwithstanding

our preference for the imposition, whenever possible, of less drastic

penalties). Cf. note 19, above.

23In affirming the dismissal of the instant complaints for failure to

cooperate, we are mindful of our earlier ruling in Koch v. Securities

and Exchange Commission, EEOC Appeal Nos. 01962676 and 01965642 (Mar. 6,

1997), request for reconsideration denied, EEOC Request Nos. 05970961

and 05970723 (Apr. 2, 1999). In that decision � involving the very same

parties � we held that a different set of complaints filed against the

agency by complainant should not have been dismissed for complainant's

failure to cooperate. We believe, however, that this earlier decision

involved an altogether different set of facts than the appeals at

issue here.

There, we did not think that complainant had engaged in sufficiently

contumacious conduct to justify dismissal of the relevant complaints.

Here, there was an overabundance of contumacy. There, we were troubled

that the agency had taken complainant to task for refusing to cooperate

in an investigation that had taken longer than 180 days � without cause

for extension or clarification of complainant's alternative right to an

immediate hearing. Here, once the initial 180-day investigatory period

had ended, complainant was always given a full and fair opportunity to

have a hearing before an EEOC administrative judge and/or the 180-day

investigatory period itself was extended by administrative order.

These critical factors distinguish the processing of the complaints at

issue here from the ones at issue in Koch v. Securities and Exchange

Commission, EEOC Appeal Nos. 01962676 and 01965642 (Mar. 6, 1997),

request for reconsideration denied, EEOC Request Nos. 05970961 and

05970723 (Apr. 2, 1999).

For example, with respect to Discrimination Complaint Nos. 28-96

and 18-99, once the six month investigation period had passed,

complainant requested, and was given, a hearing. The administrative

judge appointed to conduct this hearing ordered the complainant to answer

agency requests for information (notwithstanding that more than 180 days

had passed since the complaints had first been filed). See AJ's Order

Acknowledging Hearing Requests, Notice of Consolidation, and Order to

Show Cause (Apr. 18, 2000). Similarly, in the case of Discrimination

Complaint Nos. 50-96 and 51-97, after the 180-day time frame was up,

complainant requested and received a hearing. Again, the relevant

administrative judge extended the agency's authority to investigate.

See AJ's Order Acknowledging Hearing Requests, Consolidating Complaints,

and Placing Hearing Requests in Abeyance (Apr. 27, 2001); see also Koch

v. Securities and Exchange Commission, EEOC Appeal No. 01992500 (Mar. 16,

2000) (in which this Commission's Office of Federal Operations itself

had earlier lengthened the investigatory time period for Discrimination

Complaint No. 50-96). Finally, in Discrimination Complaint No. 04-96,

after the initial 180-day period had passed, complainant again requested

and was given a hearing (and again was ordered by an administrative

judge to supply the agency with critical investigatory information).

See AJ2's Notice & Order (Jul. 20, 1999).

In short, during the processing of each complaint considered herein,

complainant's right to a hearing was at all times preserved, and the

180-day investigatory period was legitimately extended by either an

administrative judge or the EEOC itself. See, e.g., 29 C.F.R. ��

1614.108(e), (f) (providing that a complaint investigation must be

completed within 180 days or �the time period contained in an order

from the Office of Federal Operations on an appeal from a dismissal�);

EEO-MD-110, at 7-7 (stating that administrative judges may direct the

agency to complete its investigation within whatever time period the

administrative judges prescribes); 29 C.F.R. � 1614.109(a) (stipulating

that administrative judges, once appointed, have full responsibility

for overseeing the development of the relevant record); 29 C.F.R. �

1614.109(f)(1) (holding that the �complainant . . . shall produce such

documentary and testimonial evidence as the administrative judge deems

necessary�); and 29 C.F.R. � 1614.109(d) (noting that administrative

judges may issues whatever �discovery orders are appropriate�).

Complainant's subsequent contumacious conduct therefore cannot be

excused on the grounds that his administrative EEO rights had somehow

been compromised and/or that the agency had no authority to investigate

his complaints. For this reason, the arguments that he advanced in

Koch v. Securities and Exchange Commission, EEOC Appeal Nos. 01962676

and 01965642 (Mar. 6, 1997), request for reconsideration denied, EEOC

Request Nos. 05970961 and 05970723 (Apr. 2, 1999), are inapplicable now.