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.