[Redacted], Damion M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Feb 7, 2023

Appeal No. 2021004395 (E.E.O.C. Feb. 7, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Damion M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021004395 Hearing No. 451-2019-00020X Agency No. 4G-780-0035-18 DECISION On July 30, 2021, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s June 30, 2021, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Agency’s final decision is VACATED, and the complaint is REMANDED for a hearing. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier, Q-01/O, at the Valley Hi Station in San Antonio, Texas. On March 27, 2018, Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of disability (Disabled Veteran Status; Post Traumatic Stress Disorder (PTSD); Skin Disease) when: 1. On November 9, 2017, the Customer Services Supervisor issued Complainant a notice to report to work; 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. 2021004395 2 2. On November 13, 2017, Complainant’s request for a reasonable accommodation was not approved; 3. From November 13 through November 17, 2017, the Customer Services Supervisor charged Complaint Leave Without Pay (LWOP); 4. On November 17, 2017, Complainant’s Wounded Warrior Leave had elapsed and Valley Hi Station’s management did not apply the leave to cover his absences; and 5. On February 18, 2018, the Customer Services Supervisor and the Customer Services Manager required Complainant to submit a medical clearance certification.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the investigative report (IR) and notice of his right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing on October 5, 2018. On January 12, 2021, the parties were advised that the AJ assigned to the case had retired, and consequently, that the matter had been reassigned to another AJ. The order included the following instructions for the parties: You are required to file a status report in this case within fifteen (15) days from the date of this order. You should upload the status report in FedSEP (for Agencies) or the EEOC’s Public Portal (For Complainants discussed further below) * * * For Complainant’s please affirmatively state whether you have created an account through the EEOC’s public portal. This electronic file allows you and your representative twenty-four-hour access to the information in your case file and allows you to view. Upload, and download copies of motions, orders, and other notices in the case. For further information about the portal, go to https://publicportal.eeoc.gov/portal and select my EEOC cases. Click sign up now under new users and enter contact information and a password. All materials filed by parties in the case should be uploaded into the Public Portal (for Complainants/representatives) or FedSEP (for Agencies). Complainants are strongly encouraged to register in the EEOC Public Portal as that is where all case- related documents should be filed by the parties. Moreover, the administrative judge will issue all orders through the portal. * * * 2 The Agency dismissed an additional allegation for untimely EEO counselor contact. Investigative Report (IR) 57-60. Complainant raised no challenges regarding this matter and the Commission can find no basis to disturb the Agency’s dismissal decision. 2021004395 3 The notice also included a warning that failure to comply with the order without good cause might be grounds for sanctions, including dismissal of the complaint. According to the certificate of service, copies of the notice and order were sent to Complainant, his representative, and Agency Counsel via the FED/SEP Portal on January 12, 2021. On April 23, 2021, the AJ issued a show cause order directing Complainant to respond by May 10, 2021, as to whether he still wished to pursue the matter: To date, Complainant has not filed a status report. The notice/order that was sent to Complainant and his representative at the email addresses above were not returned as undeliverable or otherwise bounced back. Complainant downloaded the Notice/Order on January 27, 2021. Complainant has not requested an extension of time to respond to the order and as of this date (almost 3 months later) has not complied with this order. It is ordered that Complaint show cause in writing by May 10, 2021, by filing a written response that demonstrates good cause for his failure to comply with the order requesting status report and states whether he wishes to pursue this matter before the EEOC. Complainant is warned that Complainant’s failure to show good cause may result in sanctions, including dismissal of his hearing request. According to the certificate of service, copies of the show cause order were sent to Complainant, his representative, and Agency Counsel via the FED/SEP portal on April 23, 2021. On May 12, 2021, the Agency filed a motion to dismiss Complainant’s hearing request as a sanction for failure to comply with the AJ’s show cause order. On May 18, 2021, the case was transferred from the Commission’s San Antonio Field Office to its Houston District Office. Complainant and his representative were both notified of the transfer via the FedSEP portal. According to the certificate of service, copies of the Agency’s motion to dismiss were sent to the email addresses of record of Complainant and his representative on May 12, 2021. On May 24, 2021, the third AJ assigned to the case issued an acknowledgement order which included the following provisions: If Complainant has not already done so, he can access his case through the EEOC’s secure online system called the EEOC Public Portal. The EEOC Public Portal (for Complainants) and the Agency’s Federal Sector Portal (for Agencies) will allow complainants agencies, and the EEOC to transmit documents and communications to each other, as well as view all documents in the case… * * * Once Complainant registers to use the EEOC public portal, he will receive an email notification when new documents have been added to the case and will be able to review those documents. 2021004395 4 If Complainant does not register in the EEOC Public Portal but has provided the EEOC with an email address, he will still receive the automated notification form the EEOC Public Portal but will not be able to review the documents. If Complainant has not registered in the EEOC public portal and the EEOC does not have an email address on record, all case-related communications from the EEOC will be sent via first class mail or facsimile. Therefore, we highly encourage complainants to provide us with an email address and register in the EEOC Public Portal * * * The Agency must continue to use FedSEP to upload any case related information and documentation. Until the EEOC Public Portal has the capacity to notify the Agency of an existing portal account, the Agency must serve a copy of any document uploaded to FedSEP to Complainant via email, facsimile, or first-class mail. * * * The parties are ORDERED to provide a preliminary case information (PCI) submission *** no later than 15 days from the date of this Order. *** Failure to submit the PCI may result in sanctions, such as: waiver of discovery; denial of motions in the areas addressed in the PCI (dismissals or additional evidence); dismissal of the hearing request for final action by the Agency; or default judgment against the Agency. In addition, Section VI of the order informed the parties that failure to follow this or other orders could result in sanctions. According to the Certificate of Service, copies of this second acknowledgement order were sent to Complainant, his representative, and Agency Counsel to their email addresses of record on May 24, 2021. On June 9, 2021, the AJ ordered the dismissal of Complainant’s hearing request: To date, there has been no response from Complainant to the Order to show cause issued on April 23, 2021, or the Agency’s motion to dismiss submitted on May 12, 2021. Specifically, Complainant has failed to submit: (1) a written status report; (2) a written response that demonstrates good cause for his failure to comply with the Order requesting Status report; or (3) a response which opposes the Agency’s motion to dismiss. * * * In the present matter, Complainant has completely failed to submit a status report and bide by previously issued order. Complainant has hampered the EEO process and shown no regard for the orders of the Assigned Administrative Judges. Under the circumstances, and given the stage of the instant case, the only appropriate sanction is dismissal of the hearing request and remand to the Agency for issuance 2021004395 5 of a Final Agency Decision. This sanction would clearly demonstrate the ramifications for non-compliance while still allowing Complainant to exercise his right to appeal. *** Accordingly, notice is given that the above-captioned case is dismissed from the hearing docket for failure to follow the judge’s orders. According to the certificate of service, copies of the AJ’s order dismissing Complainant’s hearing request as a sanction were sent to Complainant and his representative through the Public Portal and their email addresses of record. The order was also sent to Agency Counsel through FedSEP and his email address of record. The AJ remanded the complaint to the Agency. The Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). In the decision, the Agency concluded that Complainant failed to prove that he was subjected to discrimination as alleged. This appeal followed. CONTENTIONS ON APPEAL On appeal, Complainant raises a number of contentions: I did reach out to the EEOC requesting information on a letter I managed to open on the portal. And in response to the information that I read on the EEOC portal by the judge. I did not intentionally ignore any request; I was seeking guidance to the situation. There is misinformation on the EEOC portal. As I open the portal at my end (under my case) it says that my request for hearing was received and that an administrative judge was assigned to my case. That information as it reads is misleading. After navigating the website and the portal it took approximately 2 years from the date, I submitted a hearing for it to be inputted into my case portal. My request was sent in October 2018. After seeking guidance through the EEOC via telephone, I received the same information. As I pursued different avenues to obtain a date, the shutdown of the Covid-19 pandemic started. I could not physically talk to anybody in the San Antonio field office where I submitted my claim. To which the Agency responded: [Complainant] completely failed to submit a status report and failed to abide by multiple orders issued in the administrative process. [Complainant] hampered the EEO process and demonstrated contempt for the orders of assigned Administrative Judges. Under the circumstances, dismissal of [Complainant’s] hearing request and remand to the [Agency] for issuance of the FAD was an appropriate sanction 2021004395 6 because it demonstrated the ramifications for non-compliance while still allowing [Complainant] to exercise his right to appeal. Agency’s Response Brief, p. 5. ANALYSIS AND FINDINGS As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). The Commission’s regulations confer upon its AJs very broad responsibility for adjudicating an EEO complaint once a complainant’s hearing request has been granted, and that responsibility gives the AJs wide latitude in directing the terms, conduct, or course of EEO administrative hearings. Chere S. v. Gen. Serv. Admin., EEOC Appeal No. 0720180012 (Nov. 30, 2018). The AJ’s discretionary authority includes the power to impose sanctions upon a party that fails to comply with the AJ’s orders. Id. When the a party fails without good cause shown to respond fully and in timely fashion to an order of an administrative judge, or requests for the investigative file, for documents, records, comparative data, statistics, affidavits, or the attendance of witness(es), the administrative judge shall, in appropriate circumstances: (i) Draw an adverse inference that the requested information, or the testimony of the requested witness, 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). Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and to prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC Appeal No. 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party’s failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep’t of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Factors pertinent to “tailoring” a sanction, or determining whether a sanction is even warranted, include: (1) the extent and nature of the non-compliance, including the justification presented by the non-complying 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. Id. 2021004395 7 The dismissal of a hearing request as a sanction is only appropriate in extreme circumstances such as willful disobedience of an AJ’s orders or unjustifiable failure to respond to those orders. Joey B. v. U.S. Postal Serv., EEOC Appeal No. 2021004116 (Dec. 8, 2022); Clarine L. v. Dep’t of Homeland Security, EEOC Appeal No. 2020004391 (Feb. 8, 2022). Examples of conduct warranting dismissal of hearing requests can be found in: Charlie K. v. Dep’t of Veteran Affairs, EEOC Appeal No. 2019002293 (Sept. 22, 2020) (failure to provide investigative affidavit during agency investigation and failure to provide answers to interrogatories during discovery despite being granted multiple extensions in both phases of the proceedings, as well as failure to appear at pre-hearing conference); and Cleo S. v. U.S. Postal Serv., EEOC Appeal No. 0120181406 (Feb. 28, 2020) (failure to participate in email communications being sought by the agency and to produce documentation ordered by AJ in a manner demonstrating disregard for the administrative process and unwillingness to comply with AJ’s orders despite warning of consequences). When a lesser sanction would normally suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing her discretion by dismissing the complaint. See Joey B., supra (dismissal of hearing request rejected on appeal where complainant subsequently found to have complied with AJ’s discovery order and where AJ issued confusing and contradictory instructions); Georgianne B. v. Dep’t. of Agric., EEOC Appeal Nos. 0120181591 & 0120181592 (Feb. 27, 2020) (dismissal of hearing request rejected on appeal where AJ dismissed hearing request outright rather than grant agency’s motion to compel discovery or limiting complainant’s discovery when complainant failed to appear at the initial conference and failed to respond to a discovery request despite the fact that the parties and the AJ remained in continuous email correspondence in an effort to litigate the case); Drucilla Y. v. Dep’t of the Treasury, EEOC Appeal No. 0120182728 (Feb. 27, 2020), req. for reconsider. den’d, EEOC Request No. 2020002964 (Dec. 29, 2020) (dismissal of hearing request rejected on appeal where complainant made earnest but unsuccessful effort to comply with an onerous acknowledgement and scheduling order). In more recent cases in which the Commission affirmed the AJ’s dismissal of a hearing request, such scenarios are typically characterized by multiple incidents of noncompliance, the complainant’s failure to respond to the AJ’s show cause order, or the lack of acts or omissions attributable to the AJ or the Agency that resulted in the complainant’s noncompliance. See e.g. Melinda H. v. Dep’t of Veterans Affairs, EEOC Appeal No. 2021004162 (Oct. 17, 2022). By contrast, in recent cases in which the Commission reversed the AJ’s dismissal of a hearing request, we tend to find that there was a single incident of noncompliance, that the complainant timely responded to the AJ’s show cause order, and that the noncompliance usually resulted from circumstances beyond the complainant’s control, from an oversight that the complainant immediately sought to correct, or where the noncompliance resulted from an act or omission on the part of the AJ or the Agency. See e.g., Stuart M. v. Gen. Serv. Admin., EEOC Appeal No. 2021005010 (Nov. 21, 2022); Sean L. v. Dep’t of the Air Force, EEOC Appeal No. 2020002537 (June 2, 2021), req. for recon. den. EEOC Request No. 2021003956 (Oct. 26, 2022). 2021004395 8 In the present case, we find that the third AJ identified three incidents of alleged noncompliance in the June 9, 2021, dismissal order: failure to submit a written status report in accordance with the January 12, 2021 order; failure to respond to the show cause order issued on April 23, 2021; and failure to respond to the May 12, 2021 motion to dismiss filed by the Agency. Complainant’s proffered justification for his noncompliance appears to be that he did not receive documents through the EEOC Public Portal in a timely manner or did not receive them at all. Applying the second and third factors, we find that Complainant’s noncompliance had the effect of delaying the processing of the complaint, which had a prejudicial impact on the Agency to some degree. This was clearly not, however, the fault of Complainant. The instructions on the two acknowledgement orders stated unambiguously that hearing-related documents would be accessible to Complainant through the EEOC Public Portal and to the Agency through FedSEP. Despite those instructions, the certificates of service for the January 12, 2021, acknowledgment order and the April 23, 2021 show cause order indicated that those orders were sent to Complainant through FedSEP, to which Complainant did not have access. Complainant attempted to communicate with offices of the various AJs involved with processing the complaint, but apparently did not have his concerns addressed or resolved. Applying the fifth factor, we find that while there were multiple incidents of noncompliance, they were attributable to the AJs’ errors in sending orders to Complainant through FedSEP, rather than through the EEOC Public Portal. In the absence of a showing of either willful disobedience or an unjustifiable failure to respond on Complainant’s part, we cannot find that the integrity of the process has been so compromised here as to warrant the severe sanction of a hearing request dismissal. As such, we conclude that the circumstances in this case do not justify the particular sanction imposed by the AJ. CONCLUSION The Commission VACATES the Agency’s final decision and REMANDS the complaint to the Agency for further action in accordance with this decision and the Order herein. ORDER The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Houston District Office within 15 days of the date this decision is issued. The Agency shall provide written notification to the Compliance Officer at the address set forth herein that the complaint file has been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall hold a hearing and issue a decision on the complaint in accordance with 29 C.F.R. §1614.109 and the Agency shall issue a final action in accordance with 29 C.F.R. § 1614.110. 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. 2021004395 9 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. 2021004395 10 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (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. 2021004395 11 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 February 7, 2023 Date