[Redacted], Elmer C., 1 Complainant,v.Carlos Del Toro, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity Commission

Mar 27, 2023

Appeal No. 2023000518 (E.E.O.C. Mar. 27, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elmer C.,1 Complainant, v. Carlos Del Toro, Secretary, Department of the Navy, Agency. Appeal No. 2023000518 Hearing No. 510202200055X Agency No. DON210969700638 DECISION Complainant filed an appeal2 with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) regarding an 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for the position of Security Guard, GS-0085-05, at the Naval Air Station in Pensacola, Florida. 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. 2 Complainant prematurely filed the appeal on October 25, 2022. However, November 28, 2022, the AJ’s decision became the Agency’s final order by operation of 29 C.F.R. § 1614.109(i). Therefore, the appeal is now perfected. 2023000518 2 On July 1, 2021, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the basis of disability (regarded as disabled)3 when: On March 18, 2021, Complainant was informed that his Temporary Job Offer (“TJO”) to fill a Security Guard, GS-0085-05 position was rescinded due to medical disqualification. At the conclusion of its investigation, the Agency provided Complainant with a copy of the report of investigation (“ROI”) and notice of his right to request a FAD or a hearing before an EEOC Administrative Judge (“AJ”). Complainant requested a hearing. However, the AJ dismissed Complainant’s hearing request as sanctions for Complainant’s failure to comply with multiple AJ Orders. The AJ remanded the matter to the Agency and ordered the Agency to issue a FAD on Complainant’s complaint pursuant to 29 C.F.R. § 1614.110(b) within 60 days. On November 28, 2022, the deadline for the Agency to issue a FAD, the Agency issued a decision explaining that the record was not sufficiently developed to render a FAD and remanding the matter for a supplemental investigation. Notably, the Agency’s decision did not provide a deadline for this investigation or appeal rights to Complainant. The instant appeal challenges the AJ’s dismissal and asks the Commission to reinstate Complainant’s hearing request. The Agency argues that the Commission must dismiss Complainant’s appeal because the Agency’s supplemental investigation has not concluded, so it has not yet issued a FAD from which Complainant can appeal. ANALYSIS Dismissal of Hearing Request The Commission's regulations afford broad authority to AJs for the conduct of hearings. 29 C.F.R. § 1614.109 et seq; EEO MD-110, Chap. 7, § III(D). An AJ has inherent powers to conduct a hearing and issue appropriate sanctions. Id., see also, Matheny v. Dep't of Justice, EEOC Request No. 05A0373 (Apr. 21, 2005), Roundtree v. Dep't of Treasury, EEOC Appeal No. 07A00015 (July 17, 2001). Dismissal of a hearing request by an AJ as a sanction is only appropriate in extreme circumstances, such as when the complainant engages in contumacious conduct, not merely negligence. See Schoenrogge v. Dep't of Justice, EEOC Appeal No. 0120130893 (May 20, 2013) citations omitted. Consequently, if a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing their discretion by dismissing the complaint. 3 Complainant asserts that he does not have any conditions that would prevent him from fully performing the duties of the position he applied for. 2023000518 3 Here, the AJ reasons that Complainant’s failure to comply with AJ-issued time frames and orders was not merely negligent, as “the extent and nature of the non-compliance in this case is extensive.” In particular, the AJ asserts that Complainant repeatedly ignored the AJ and Agency’s requests that he cooperate with discovery and “is simply unwilling to comply with the litigation rules.” The AJ offers a number of examples where Complainant refused to provide requested information, which are reflected in Complainant’s submissions. On appeal, Complainant asserts that the AJ’s dismissal of his hearing request constituted an abuse of discretion for the following (paraphrased) reasons: he has not had time to file or respond to motions because he works 12-hour shifts and is attempting to work on his EEO complaint during his break time; he does not understand the EEO process and is researching it as he goes; he does not understand what he has to do in order to satisfy the judge’s requests; as a pro se complainant, he lacks formal training and has nobody who can provide him with guidance; he is having difficulty obtaining legal representation; and he mistakenly believed that his requests for information and documents was not the same as “discovery.” Complainant also alleges that the AJ has been “very biased” against him throughout the hearing process. Specifically, he alleges that the AJ did not take into consideration Complainant’s ignorance of the proceedings and did not ask if he understood what was being conveyed in the AJ’s orders. We have carefully reviewed the hearing record and find that Complainant was on notice of the hearing process and discovery procedures. The AJ’s June 14, 2022 “Acknowledgement and Order” explained how to file motions and timely communicate with the AJ, provided a plain language overview of “Case Processing Stages,” and, in a section entitled “Discovery” defined discovery and explained when and why discovery may be ordered. Attached to this Order was a form entitled “Preliminary Case Information” which described how to determine whether a document is “relevant” and provided an opportunity for the complainant and agency to identify witnesses and documents not contained in the ROI, for the discovery process. At the end of the document, in bold, capitalized font, was a section entitled “Available Federal Hearings Resource Information” with links to resources for pro se complainants. Also on June 14, 2022, the AJ issued an “Order Scheduling Initial Conference, Establishing Instructions to Prepare for Conference, and Order to file Pre-Conference Statement,” which, among other things, provided detailed instructions on submitting a “Discovery Plan.” Complainant participated in the Scheduling Conference, where the hearing process, including discovery was further discussed. The AJ’s August 18, 2022 “Post Conference Order” contained a detailed discovery plan specific to this complaint, including deadlines. After the Agency filed its Discovery Motion on August 23, 2022, and its Motion to Compel on September 22, 2022, Complainant had ample opportunity to request clarification when he conferred with the Agency and AJ. He declined to produce discovery materials after the AJ ordered him to do so by September 26, 2022, when granting the Agency’s Motion to Compel. The AJ’s orders expressly state that a complainant’s failure to comply with time frames and/or an AJ’s order may result in sanctions, including dismissal of their hearing request. 2023000518 4 Complainant does not dispute that he missed the deadlines provided by the AJ in the Agency’s Post Conference Order and the AJ’s Order Granting the Agency’s Motion to Compel. He also does not dispute the AJ’s assertion that he disregarded the AJ’s instructions regarding Discovery, including an Order issued on September 15, 2022. Complainant has not presented any evidence, such as emails, to show that he notified the AJ of his work-related time constraints. His only extension request was submitted after the deadline passed, and it does not reference time constraints. Likewise, he offers no evidence that he informed the AJ that he did not understand the AJ’s instructions and orders. Moreover, we are not persuaded that Complainant’s lack of knowledge is sufficient reason to reverse the AJ’s dismissal of his hearing request, given the evidence that Complainant on notice of the hearing and discovery processes and provided with opportunities to seek clarification. For the same reason, we do not find the AJ’s alleged failure to ask Complainant whether he understood the AJ’s instructions indicative of bias. At all times, the complainant is responsible for proceeding the complaint whether or not a representative has been designated. See 29 C.F.R. §1614.605(e). Complainant’s request that his hearing request be reinstated is denied. Insufficient Record The regulation under 29 C.F.R. § 1614.108(b) requires the Agency to create an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. An “appropriate factual record” is “one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.” § 1614.108(b). The ROI for the instant complaint does not constitute an “appropriate factual record.” Among other things, the ROI lacks testimony from the Occupational Health Physician who determined that Complainant was not qualified for the Security Guard position based on medications Complainant was taking. The Agency’s November 28, 2022 Decision provided a detailed list of documents and supplemental testimony necessary to develop the record so that a reasonable fact- finder can draw conclusions as to whether discrimination occurred. Complainant does not dispute the deficiencies identified by the Agency. CONCLUSION The Agency’s decision to remand Complainant’s complaint for further investigation is AFFIRMED. The matter is hereby REMANDED for further investigation to include time frames in accordance with this Decision and Order. 2023000518 5 ORDER 1. Within sixty (60) calendar days of the date of this decision was issued, the Agency, to the extent that it has not already done so, shall conduct a supplemental investigation in accordance with its November 28, 2022 Decision (incorporated by reference). Complainant shall cooperate with the Agency’s investigation. 2. Upon completion of the investigation, the Agency shall provide Complainant with a copy of the supplemental record. Complainant may, within fifteen (15) days of receipt of the supplemental record, submit a rebuttal statement and supporting evidence. 3. Within one-hundred and twenty (120) calendar days of the date of this decision was issued, the Agency shall issue a final decision on the instant complaint based on the evidence developed during the original and supplemental investigation with appeal rights to the Commission. 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. 2023000518 6 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. 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). 2023000518 7 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. 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 March 27, 2023 Date