[Redacted], Dalton E., 1 Complainant,v.Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity Commission

Sep 29, 2022

Appeal No. 0720170038 (E.E.O.C. Sep. 29, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dalton E.,1 Complainant, v. Marcia L. Fudge, Secretary, Department of Housing and Urban Development, Agency. Request No. 2019001739 Appeal No. 0720170038 Agency No. HUD-00129-2013 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0720170038 (November 30, 2018). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). For the reasons that follow, the Agency’s request is DENIED; however, the Commission on its own motion MODIFIES the appellate decision. During the relevant time, Complainant worked as an EEO Complaints Division Director at the Agency’s facility in Washington, D.C. On December 28, 2013, Complainant filed a formal complaint based on his race (African American), sex (male), and in reprisal for prior protected EEO activity. Thereafter, Complainant requested a hearing before an EEOC Administrative Judge (AJ). 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2019001739 2 On August 7, 2017, the AJ issued a decision on liability and relief, imposing a default judgment against the Agency as a sanction for the Agency’s failure to provide the Report of Investigation concerning the complaint when ordered to do so by the AJ. The AJ ordered the Agency to take the following action: (1) pay Complainant $60,000 in non-pecuniary compensatory damages; (2) pay $16,800 in attorney’s fees; (3) provide at least four hours of training to all supervisors and managers in the Agency’s Office of Departmental EEO; and (4) post a notice regarding the decision. The Agency appealed the decision to the Commission. On appeal, the Agency presented numerous arguments. The Agency challenged the Commission’s authority to order relief, citing the legal theory of sovereign immunity and the Anti-Deficiency Act. The Agency claimed it “will not follow OFO case law” as “no Federal courts share OFO’s interpretation” regarding the waiver of sovereign immunity. The Agency asserted that Complainant was not entitled to attorney’s fees because a default judgment is not “intentional” discrimination. The Agency also contended that the AJ erred in granting compensatory damages from February 2012 until Complainant’s resignation in April 2014, because Complainant did not begin his employment until June 2012. The appellate decision affirmed the AJ’s imposition of default judgment and the remedies awarded. See Dalton E. Dep’t of Housing and Urban Development, EEOC Appeal No. 0720170038 (Nov. 30, 2018). Even when accounting for the initial processing of the complaint by another agency due to a conflict of interest, more than 180 days had already passed when the AJ ordered the Agency to produce a Report of Investigation. See id. Yet, the Agency did not provide the Report or submit any response to the AJ’s order or telephone inquiries. The appellate decision determined that under the circumstances presented, the sanction of default judgment was not an abuse of discretion. See id. As for relief, it was determined that Complainant established a prima facie case of racial discrimination, as well as sex discrimination regarding claims (4) and (8). See id. Based on the statements provided by Complainant, as well as his wife, the AJ’s award of $60,000 in non-pecuniary, compensatory damages was consistent with the amounts awarded in similar cases. Regarding attorney’s fees, the hourly rate and number of hours deemed reasonable by the AJ were also upheld. See id. We presently decline to detail each and every contention presented in the Agency’s request. The contentions can accurately be summarized as a mere reiteration of arguments previously made on appeal. Generally, the Agency request asserts that: (1) the Commission made a clear error of fact, in finding that Complainant was subjected to discrimination “since in or around 2012” rather than June 2012; and (2) committed a “per se mistake of law” and a “due process violation” in failing to address its sovereign immunity arguments. Regarding the purported “error in fact”, this contention was raised and considered during the original appeal. The Agency is reminded that a “request for reconsideration is not a second appeal to the Commission.” Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (rev. Aug. 5, 2015), at 9-18; see, e.g., Lopez v. Dep't of Agriculture, EEOC Request No. 0520070736 (Aug. 20, 2007). 2019001739 3 Moreover, even if a factual error by the AJ occurred in this regard, it was a harmless error as the amount of compensatory damages awarded was not tied to a particular date in 2012, but rather the degree of harm suffered by Complainant during his employment with the Agency. With respect to the Agency’s sovereign immunity argument, this argument too was previously raised and considered on appeal. Although the Agency vociferously contends that the absence of an explicit description and consideration of any and all arguments constitutes a violation of due process, it is quite simply incorrect. All of the parties’ submissions on appeal were considered by the Commission. In this case, we were not persuaded by those presented by the Agency. We do not find merit in the Agency’s arguments. We therefore will deny the Agency’s request. We nonetheless find that the AJ’s imposition of a default judgment without considering a lesser sanction was an abuse of discretion. As we lately reiterated in Cecile T. v. Department of the Treasury: An AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. § 1614.109(f)(3). Such sanctions may include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other information offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party, or other actions, as appropriate. Id. The Commission has held repeatedly that sanctions must be tailored to each situation, applying the least severe sanction necessary to respond to the party's failure to show good cause for its actions, as well as to equitably remedy the opposing party. See Ward B. v. U.S. Postal Serv., EEOC Appeal No. 2019001570 (May 12, 2020); Gray v. Dep't of Def., EEOC Appeal No. 07A50030 (March 1, 2007); Rountree v. Dep't of the Treasury, EEOC Appeal No. 07A00015 (July 13, 2001); Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). Cecile T. v. Dep’t of the Treasury, EEOC Appeal No. 2019002373 (Sept. 22, 2020). We further explained that, consequently, if a lesser sanction would be sufficient to deter the offending party’s conduct and to equitably remedy the opposing party, an AJ may be abusing his or her discretion by granting a default judgment. We then noted: The Commission's interest lies in deterring the underlying conduct of the non- complying party and protecting its administrative process from abuse by either party to ensure that agencies, as well as complainants, abide by its regulations. See Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sep. 25, 2009). The factors pertinent to “tailoring” a sanction, or determining whether a sanction is, in fact, warranted, include the following: (1) the extent and nature of the non-compliance, including the justification presented by the non-complying 2019001739 4 party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; (4) the number of times the party has engaged in such conduct; and (5) the effect on the integrity of the EEO process as a whole. Chere S. v. Gen. Serv. Admin., EEOC Appeal No. 0720180012 (Nov. 30, 2018); see also Royal, EEOC Request No. 0520080052; Gray, EEOC Appeal No. 07A50030; Vovsest v. Soc. Sec. Admin., EEOC Appeal No. 01A35340 (Jan. 18, 2005). Cecile T., EEOC Appeal No. 2019002373. In reviewing the AJ’s order, we note that, while the AJ explained her rationale for imposing a default judgment, there is no indication that she considered whether a lesser sanction would have adequately addressed the Agency’s conduct and ameliorated any prejudice to the Complainant caused by that conduct. See, e.g., Ward B., EEOC Appeal No. 2019001570. The AJ had available a lesser sanction than default judgment which would have sufficed to address the Agency’s prolonged failure to produce the Report of Investigation. See 29 C.F.R. § 1614.109(f)(3). Rather than a default judgment, the evidentiary sanction of excluding the Report serves to remedy the Agency’s conduct. Further, once the Report is excluded from evidence, the Agency has not met its burden to offer a legitimate, nondiscriminatory explanation for its actions. See Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Summary judgment for the Complainant therefore is appropriate. See, e.g., Clemente v. Dep’t of Justice, EEOC Appeal No. 0720080012 (Sept. 24, 2008), req. for recon. den., EEOC Request No. 0520090075 (Jan. 8, 2009) (Agency’s failure to provide sufficient explanation for its actions warrants summary judgment for complainant). Alternatively, the Agency’s failure to timely produce the Report of Investigation may be held to warrant the evidentiary sanction of an adverse inference that the Report would have been unfavorable to the Agency, or a determination that the information in the Report supports Complainant’s claims. See 29 C.F.R. § 1614.109(f)(3). Again, the Agency then has not met its burden to offer a legitimate, nondiscriminatory explanation for its actions, and summary judgment for the Complainant therefore is appropriate. See Clemente, EEOC Appeal No. 20080012. CONCLUSION After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the Agency’s request. The Commission on its own motion MODIFIES the decision in EEOC Appeal No. 0720170038 to reflect our analysis above. There is no further right of administrative appeal on the decision of the Commission on this request. The Agency shall comply with the Order of the Commission as set forth below. 2019001739 5 ORDER To the extent it has not already done so, the Agency is ORDERED to take the following actions: 1. Within 60 days of the date this decision is issued, the Agency shall pay Complainant $60,000 in nonpecuniary, compensatory damages. 2. Within 60 days of the date this decision is issued, the Agency shall pay Complainant $16,880 in attorney’s fees. 3. Within 90 days of the date this decision is issued, the Agency shall provide at least four hours of training to all supervisors and managers in its Office of Departmental Equal Employment Opportunity regarding the Agency’s obligations under EEOC Management Directive 110, Title VII, and 29 C.F.R. Part 1614 regulations regarding complaint processing. 4. Within 60 days of the date this decision is issued, the Agency shall consider taking disciplinary action against the responsible EEO officials still employed by the Agency. The Commission does not consider training to be a disciplinary action. The Agency shall report its decision to the Commission and specify what, if any, action was taken. If the Agency decides not to take disciplinary action, then it shall set forth the reasons for its decision not to impose discipline. The Agency is further directed to submit a report of compliance in digital format as provided in the statement entitled "Implementation of the Commission's Decision." The report shall be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Further, the report must include supporting documentation of the Agency's calculation of back pay and other benefits due Complainant, including evidence that the corrective action has been implemented. POSTING ORDER (G0617) The Agency is ordered to post at its Washington, D.C., facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision was issued, and shall remain posted for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer as directed in the paragraph entitled "Implementation of the Commission's Decision," within 10 calendar days of the expiration of the posting period. The report must be in digital format, and must be submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 2019001739 6 ATTORNEY'S FEES (H1019) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she/he is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of receipt of this decision. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 2019001739 7 If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations September 29, 2022 Date