0120113933
10-11-2012
Yuri J. Stoyanov, Complainant, v. Ray Mabus, Secretary, Department of the Navy, Agency.
Yuri J. Stoyanov,
Complainant,
v.
Ray Mabus,
Secretary,
Department of the Navy,
Agency.
Appeal Nos. 0120113931, 0120113932,
0120113933, 0120113934,
0120113935, 0120113936
Hearing Nos. 531-2011-00138X-00143X
Agency Nos. 09-00167-02270, 09-00167-03608,
10-00167-00212, 10-00167-00504,
10-00167-01004, 10-00167-01369
DECISION
On August 19, 2011, Complainant filed six appeals from the Agency's final decisions concerning his equal employment opportunity (EEO) complaints alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission accepts the appeals as timely pursuant to 29 C.F.R. � 1614.405(a). We have exercised our discretion to consolidate these appeals for joint processing pursuant to 29 C.F.R. � 1614.606. For the following reasons, the Commission AFFIRMS the Agency's final decisions.
ISSUES PRESENTED
The issues presented are whether the Administrative Judge properly dismissed Complainant's hearing requests, and whether the Agency properly found that Complainant had not established that he had been discriminated against as alleged.
BACKGROUND
Complainant's complaints
At the time of events giving rise to these complaints, Complainant was employed as a Scientist, ND-1310-IV, at the Agency's Naval Surface Warfare Center (the Activity) in Carderock, Maryland. Each of Complainant's EEO complaints allege that the Agency discriminated against him on the bases of national origin (Russian), age (year of birth 1955), and in reprisal for prior protected EEO activity arising under Title VII and the ADEA.
On July 14, 2009, Complainant filed complaint #1 (Agency No. 09-00167-02270, EEOC Appeal No. 0120113936), claiming he was discriminated against when:
1. in May 2009, he was not selected, assigned, or promoted to the ND-05 temporary Engineer position, VA# NE9-NDXXXX-05-4G244902-C-AL-65 in Code 7207, filled on April 10, 2009;
2. in June 2009, he was not selected, assigned, or promoted to the ND-05 Engineer position, VA# NE9-NDXXXX-05-4G220740-C-MP-44 in Code 712, filled on February 12, 2009; and
3. in June 2009, he was not selected, assigned, or promoted to the ND-05 Engineer position, VA# NE8-NDXXXX-05-4G202294-C-AL-32 in Code 7072, filled on February 13, 2009.
By letter dated July 28, 2009, the Agency dismissed Complainant's additional claim in complaint #1 that he was discriminated against when the Secretary of the Navy failed to take remedial measures and respond to his requests dated March 23, 2009, and May 4, 2009, citing 29 C.F.R. � 1614.107(a)(1), as a claim that had been raised in previous complaints, and citing 29 C.F.R. � 1614.107(a)(9), for abuse of process.
On October 23, 2009, Complainant filed complaint #2 (Agency No. 09-00167-03608, EEOC Appeal No. 0120113931), claiming he was discriminated against when:
1. he was not selected, assigned, or promoted to the ND-05 Program Manager position, VA# NE9-NDXXXX-05-4G407422-C-AL-69 in Code 7502, filled on August 17, 2009;
2. he was not selected, assigned, or promoted to the ND-05 temporary Program Manager position, VA# NE9-NDXXXX-05-4G427065-C-AL-70 in Code 743, filled on September 4, 2009.
By letter dated November 3, 2009, the Agency dismissed the above two claims, as well as three other claims raised by Complainant, citing 29 C.F.R. � 1614.107(a)(1), as a claim that had been raised in previous complaints, and citing 29 C.F.R. � 1614.107(a)(9), for abuse of process. Complainant filed a timely appeal with the Commission, and in EEOC Appeal No. 0120100624 (May 20, 2010), the Commission affirmed the dismissal of the other three claims as having been raised in previous complaints, but reversed the Agency on the non-selection claims, and remanded the above two claims for investigation.
On December 2, 2009, Complainant filed complaint #3 (Agency No. 10-00167-00212, EEOC Appeal No. 0120113934), claiming he was discriminated against when:
1. in September 2009, he was not selected, assigned, or promoted to the ND-05 Program Manager position, VA# NE9-NDXXXX-05-4G429666-C in Code 743;
2. in October 2009, he was not selected, assigned, or promoted to the ND-06 Manager position, VA# NE9-ND0801-06-4G429885-C-MP-11 in Code 20.
By letter dated January 5, 2010, the Agency dismissed Complainant's claims in complaint #3 that between November 2007 and August 2009, he was not selected assigned, or promoted to various Program Manager, Manager and/or Engineer positions, citing 29 C.F.R. � 1614.107(a)(1), as claims which failed to state a claim; citing 29 C.F.R. � 1614.107(a)(2), as claims untimely raised with an EEO Counselor; and citing 29 C.F.R. � 1614.107(a)(9), for abuse of process.
On January 12, 2010, Complainant filed complaint #4 (Agency No. 10-00167-00504, EEOC Appeal No. 0120113932), claiming he was discriminated against when:
1. in October 2009, he was issued a Notice of Proposed Indefinite Suspension, dated October 21, 2009;
2. in October 2009, management denied his request for all agency documents he allegedly needed to respond to allegations in the Notice of Proposed Indefinite Suspension; and
3. in October 2009, he was not selected, assigned, or promoted to the ND-05 Program Manager position, VA# NE9-ND0850-05-4G503103 in Code 75.
By letter dated February 2, 2010, the Agency dismissed Complainant's claim in complaint #4 that in October 2009, management officials denied his request to recall him back to work, citing 29 C.F.R. � 1614.107(a)(1), as a claim which had previously been raised in the EEO process, and accepted for investigation in another complaint.
On December 2, 2009, Complainant filed complaint #5 (Agency No. 10-00167-01004, EEOC Appeal No. 0120113933), claiming he was discriminated against when:
1. in November 2009, he was not selected, assigned, or promoted to the ND-05 Engineer position, VA# NE9-NDXXXX-05-4G516174-C-AL-03 in Code 2130; and
2. in December 2009, he was not selected, assigned, or promoted to the ND-05 Engineer position, VA# NE9-NDXXXX-05-4G516160-C-AL-26 in Code 2120.
By letter dated March 31, 2010, the Agency dismissed Complainant's claims in complaint #5 that in February 2010, he was not selected, assigned, or promoted to the ND-5 Engineer position in Code 7072, and in January 2010, management failed to remove the Agency Counsel from representing the Agency in his EEO complaints, citing 29 C.F.R. � 1614.107(a)(1), as the same claims raised in a previous EEO complaint, and citing 29 C.F.R. � 1614.107(a)(9), for abuse of process.
On April 21, 2010, Complainant filed complaint #6 (Agency No. 10-00167-01369, EEOC Appeal No. 0120113935), claiming he was discriminated against when in December 2009, he was not selected, assigned, or promoted to the ND-06 Manager position, VA# NE9-NT0301-06-4G487170-C in Code 30.
By letter dated May 3, 2010, the Agency dismissed Complainant's claims in complaint #6 that he was discriminated against when: in February/March 2010, management officials failed to take remedial measures and respond to his appeal regarding his Notice of Proposed Removal dated June 19, 2009, and management's reply dated February 23, 2010; in February/March 2010, management officials denied his request for the supporting agency documentation and for an extension of time to respond to the Notice of Proposed Removal dated June 19, 2009, and to management's reply dated February 23, 2010, and they failed to approve his request for Leave Without Pay (LWOP) effective February 24, 2010, until a final clearance determination could be made by the Department of the Navy Central Adjudication Facility (DONCAF); and in March 2010, a Rear Admiral, a Vice Admiral, and the Secretary of the Navy failed to respond and take remedial measures to his request for the supporting agency documentation and for an extension of time to respond to the Notice of Proposed Removal dated June 19, 2009, and to management's reply dated February 23, 2010, and they failed to approve his request for LWOP effective February 24, 2010, until a final clearance determination could be made by the DONCAF, or to restore him to work immediately. The Agency cited 29 C.F.R. � 1614.107(a)(1), as the same claims raised in previous EEO complaints, and cited 29 C.F.R. � 1614.107(a)(9), for abuse of process, as the reasons for its dismissal of those claims.
At the conclusion of the investigations, the Agency provided Complainant with copies of the reports of investigation and notice of his right to request hearings before an EEOC Administrative Judge (AJ). Complainant timely requested hearings for each complaint.
The hearings process
Complainant's hearing requests were consolidated for processing by the same AJ under Hearing Nos. 531-2011-00138X through 531-2011-00143X, in an Amended Acknowledgment and Order dated March 1, 2011. The Amended Acknowledgment and Order set out the parameters for the conduct of the hearing process, directed the parties to commence discovery, and notified the parties of the potential that sanctions could be issued in the event that either party did not comply with the Orders of the AJ.
On March 11, 2011, the AJ issued a notice entitled Adoption of Previous Orders, in which he adopted certain Orders previously issued in Complainant's Hearing Nos. 120-2003-00031X, 120-2003-00387X, 531-2007-00038X, 531-2007-00135X-000136X, 531-2010-00072X-00078X, and 531-2008-00148X-00149X. These previous Orders had ruled on issues such as the amount of official time to grant Complainant to work on his EEO complaints, motions previously made by Complainant to disqualify the Agency Counsel, motions made by Complainant for a change of venue and of AJ, and various other discovery disputes which had arisen, as well as on previous motions for sanctions initiated by the parties. Complainant was warned that:
[A]ny further acts of contumacious conduct as referenced in the above-cited Orders will not be tolerated and will result in sanctions including dismissal of Complainant's request for a hearing with prejudice from the jurisdiction of the Commission and remand to the Agency for a Final Agency Decision in accordance with 29 C.F.R. � 1614.110, and any other sanction that is deemed reasonable and/or necessary to preserve the integrity of the EEO administrative process.
On March 24, 2011, Complainant filed a Motion to Reconsider Adoption of Previous Orders, as well as several other Motions. On March 28, 2011, the Agency filed a Motion to Dismiss Complainant's complaints from the hearing process. The Agency argued that it seemed that what "Complainant is intent on highlighting, is that the Complainant has no intention of following any Order by any EEOC Administrative Judge directed to him that he disagrees with." It noted that Complainant's Motion was "replete with attacks on the Agency representative, and the Judges of the EEOC, MSPB [Merit Systems Protection Board], and Federal District Court of Maryland." The Agency argued that the hearings requests should be dismissed due to Complainant's "persistent contumacious conduct, violations of and disdain for EEOC orders, and an abuse of process" which had been "unabated for 8 years."
Complainant filed an opposition to the Agency's Motion of Dismiss on April 3, 2011. He argued that it was "unsupported by evidence, was intentionally filed to obstruct justice, and must be denied." He also filed a Motion to Disqualify the Agency's Representative, in which he made further accusations of wrong-doing against the Agency Counsel, and other AJs who had previously handled his cases in EEOC's Baltimore Field Office. On April 4, 2011, the Agency filed a Supplement to its Motion to Dismiss, in which it cited examples of what it alleged to be Complainant's further contumacious conduct, as seen in his April 3, 2011, filings.
Complainant again opposed the Agency's Motions to Dismiss in a filing on April 15, 2011. He further argued that the Agency Counsel should be disqualified, and had perpetuated fraudulent filings on the Commission. He made statements such as calling the Agency Counsel a "blatant criminal," who engaged in "vicious attacks with baseless accusations against Complainant to cover up the escalation of corruption, the abuse of position of agency representative by criminal conduct in reprisal for Complainant's disclosures of [Counsel's] criminal conduct that had been made since 2003 through the chain of [N]aval command..." On April 23, 2011, the Agency filed an additional Supplement to its Motion to Dismiss, in which it cited more examples of what it alleged to be Complainant's further contumacious conduct, as seen in his April 15, 2011 filing.
On April 28, 2011, the AJ issued an Order of Dismissal in which he granted the Agency's Motion to Dismiss, and dismissed Complainant's hearings requests. The AJ noted that he had adopted the previous Orders in many of Complainant's prior hearings before the Commission in his March 11, 2011, Adoption of Previous Orders. He quoted the portion of the Adoption in which Complainant was warned that non-compliance could lead to the dismissal of his hearing requests. The AJ recounted examples of the instances in Complainant's most recent filings in which he used "vituperative language" in reference to the Agency Counsel and Commission AJs, in clear contravention to the Order of the AJ. The AJ found that "such continuous and flagrant disregard of the Commission's Orders cannot be tolerated." As a sanction for violating the Orders of the AJ, Complainant's hearing requests were dismissed, and the complaints were remanded to the Agency for the issuance of final Agency decisions.
Final Agency decisions
The Agency issued its final decisions on each complaint pursuant to 29 C.F.R. � 1614.110(b). The decisions concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
In its decision (FAD #1) for complaint #1 (Agency No. 09-00167-02270, EEOC Appeal No. 0120113936), dated June 20, 2011 and mailed on June 27, 2011, the Agency found that for claim 1, in February 2009, the Agency initiated a personnel action to fill a temporary, not to exceed 5 years, ND-5 Engineer position. Complainant applied, and was on the certificate as one of 13 competitive candidates, but was not interviewed or selected. For claim 2, in December 2008, the Agency initiated a personnel action to fill an ND-5 Engineer position, Complainant applied, was on the certificate as one of 15 competitive candidates, was interviewed by the selection panel, but was not selected. For claim 3, in November 2008, the Agency initiated a personnel action to fill an ND-5 Engineer position, Complainant applied, was on the certificate as one of 11 competitive candidates, but was not interviewed or selected. In order to be selected for each of the three positions, a selectee had to have the ability to receive and maintain a Secret clearance (at a minimum).
The Agency decision assumed that Complainant had established his prima facie cases on all alleged bases. It found that it had articulated legitimate, nondiscriminatory reasons for not selecting Complainant for each position. In claim 1, the selecting official stated that Complainant did not meet the basic requirement of the position because his security clearance had been suspended on February 20, 2009. He also maintained that the selectee was the best qualified candidate for the position, and had been unanimously recommended for the position. In claim 2, the selecting official stated that Complainant was interviewed, but that he did not provide experience relevant to the job, and the selectee was better qualified for the position. In claim 3, the selecting official stated that Complainant was not among the highest-qualified individuals to be interviewed, and that the selectee was chosen by the interview panel as the best candidate for the position. The Agency concluded that Complainant had not shown the Agency's reasons to be pretext for discrimination on any of his alleged bases, and had not demonstrated that he was so plainly superior to the selectees as to require a finding of discrimination.
In its decision (FAD #2) for complaint #2 (Agency No. 09-00167-03608, EEOC Appeal No. 0120113931), dated July 5, 2011 and mailed on July 28, 2011, the Agency found that in February 2009, Complainant's access to classified information and his assignment to a sensitive position were indefinitely suspended, pending adjudication by DONCAF1; on March 31, 2010, Complainant was removed from federal employment. In claim 1, in June 2009, the Agency initiated a personnel action to fill an ND-5 Program Manager position. Complainant applied and was on the certificate as the only competitive candidate, along with one non-competitive candidate. The position required the ability to receive and maintain Top Secret clearance. Complainant was not selected. In claim 2, in July 2009, the Agency initiated a personnel action to fill a temporary, not to exceed 5 years, ND-5 Program Manager position. Complainant was on the certificate for the position at issue as one of 7 competitive candidates. This position also required the ability to receive and maintain Top Secret clearance. Complainant was not selected.
The Agency decision assumed that Complainant had established his prima facie cases on all alleged bases. It found that it had articulated legitimate, nondiscriminatory reasons for not selecting Complainant for each position. In claim 1, the selecting official maintained that the best candidate for the position had been selected. He noted that the selectee had extensive experience in the specialized area, whereas Complainant's area of expertise was in a different technical specialization. Additionally, Complainant's security clearance had been suspended at the time of the selection. In claim 2, the selecting official stated that Complainant was not a viable candidate for the position because his security clearance had been suspended, and his resume had been scored relatively low during the initial screening of the applicants. Based on those factors, Complainant was not interviewed and the selectee was chosen as the best candidate. The Agency concluded that Complainant had not shown the Agency's reasons to be pretext for discrimination on any of his alleged bases, and had not demonstrated that he was so plainly superior to the selectees as to require a finding of discrimination.
In its decision (FAD #3) for complaint #3 (Agency No. 10-00167-00212, EEOC Appeal No. 0120113934), dated July 5, 2011 and mailed on July 28, 2011, the Agency found that for claim 1, in July 2009, the Agency initiated a personnel action to fill an ND-5 Program Manager position which had been advertised under an open continuous vacancy announcement which had opened on April 28, 2005. On August 13, 2009, a certificate was issued for the position; complainant was on the certificate as one of 11 competitive candidates. The position required the selectee to have the ability to receive and maintain a Top Secret clearance. Complainant was not interviewed or selected. In claim 2, in July 2009, the Agency initiated a personnel action to fill a Manager, ND-5, position which had promotion potential to ND-6. This position also required the selectee to have the ability to receive and maintain a Top Secret clearance. Complainant was not listed on the certificate of competitive candidates, was not interviewed, and was not selected.
The Agency decision assumed that Complainant had established his prima facie cases on all alleged bases. It found that it had articulated legitimate, nondiscriminatory reasons for not selecting Complainant for each position. In claim 1, the selecting official maintained that he selected the best candidate for the position. The selection panel had looked for the candidates with the best experience in management, leadership and technical areas. He stated that Complainant scored low in the management and leadership areas when the resumes were screened, which is why he was not interviewed. In claim 2, the selecting official stated that as Complainant was not listed on the certificate, he was not considered for the ND-5 Manager position, and that the best candidate was chosen following a two-part interview process. The Agency concluded that Complainant had not shown the Agency's reasons to be pretext for discrimination on any of his alleged bases, and had not demonstrated that he was so plainly superior to the selectees as to require a finding of discrimination, especially given his lack of security clearance at the time in question, which was required for each position.
In its decision (FAD #4) for complaint #4 (Agency No. 10-00167-00504, EEOC Appeal No. 0120113932), dated July 8, 2011 and mailed on July 28, 2011, the Agency found that (as noted above) on February 18, 2009, Complainant's access to classified information and his assignment to a sensitive position were indefinitely suspended, pending adjudication by DONCAF, based on Complainant's failure to follow security and information technology directives. On October 21, 2009, Complainant's supervisor issued Complainant a Notice of Proposed Indefinite Suspension, based on the suspension of Complainant's clearance and the fact that his position required clearance in order to perform his duties. On October 26, 2009, Complainant wrote to the Department Head and the Human Relations Advisor, requesting an extension of time to respond to the Notice of Proposed Indefinite Suspension, and copies of documents related to the Notice. The Agency responded that Complainant had already been provided with the relevant documents; however, he was granted an extension of seven days. In claim 3, the Agency had issued an open continuous vacancy announcement on March 14, 2007, for the position of Electrical Engineer, at various grade levels. On October 16, 2009, a certificate was issued for the position which listed Complainant and one other candidate. The selecting official sent an e-mail to both candidates to arrange interviews; Complaint did not respond and the other candidate was selected.
The Agency decision assumed that Complainant had established his prima facie cases on all alleged bases. It found that it had articulated legitimate, nondiscriminatory reasons for each claim. In claim 1, the Complainant's supervisor stated that the Notice of Proposed Indefinite Suspension was issued because Complainant had been on administrative leave since February 2009, when his access to classified information had been suspended. Without access to classified information, Complainant could not be assigned to a sensitive position and could not perform the duties of his position. The Human Relations Advisor stated that the Notice of Indefinite Suspension was not issued in the February/March 2009 timeframe because a proposal to remove Complainant from federal service was also issued in that timeframe. However, when the removal action remained pending in October 2009, it was decided to move Complainant from a non-duty status with pay to a non-duty status without pay; therefore a decision was made to issue a Notice of Indefinite Suspension. In claim 2, the Agency maintained that Complainant had been provided the relevant documents, and that no supporting documentation had been denied. Complainant submitted his response to the Notice of Proposed Indefinite Suspension on November 5, 2009. The Human Relations Advisor noted that no decision was issued on the Notice of Proposed Indefinite Suspension because of the concurrent pending proposal to remove Complainant from federal service, which resulted in Complainant's removal.2
In claim 3, the selecting official stated that she did not select Complainant because he did not respond to an e-mail request for an interview. The only other applicant on the certificate was found to be qualified and therefore was selected.
The Agency concluded that Complainant had not shown the Agency's reasons to be pretext for discrimination on any of his alleged bases. The Agency also concluded that Complainant had not demonstrated in claim 3 that he was so plainly superior to the selectee as to require a finding of discrimination.
In its decision (FAD #5) for complaint #5 (Agency No. 10-00167-01004, EEOC Appeal No. 0120113933), dated July 8, 2011, and mailed on July 28, 2011, the Agency found that for claim 1, on October 21, 2009, the Agency issued a certificate to fill an ND-5 Engineer position which had been advertised under an open continuous vacancy announcement opened on March 14, 2007. Complainant was one of five competitive candidates on the certificate, along with four non-competitive candidates. A selection panel rated the candidates, conducted interviews and forwarded a recommendation to the selecting official, who concurred with their choice and chose the selectee. For claim 2, on October 23, 2009, the Agency issued a certificate to fill an ND-5 Engineer position, which had been advertised under an open continuous vacancy announcement which had also opened on March 14, 2007. Complainant was not on the certificate, and was therefore, not selected.
The Agency decision assumed that Complainant had established his prima facie cases on all alleged bases. It found that it had articulated legitimate, nondiscriminatory reasons for not selecting Complainant for each position. In claim 1, the selecting official stated that the selectee was the best qualified candidate, had considerable experience working in the area relevant to the position, and had been acting in the position at the time of the selection process. In contrast, he stated that Complainant's skills, abilities and experience were lacking on almost all of the rating factors used to define the position. In claim 2, the selecting official stated that he made his selection for the position using only the candidates who were listed on the existing certificate, and as Complainant was not listed on the certificate, he could not be chosen. The Agency concluded that Complainant had not shown the Agency's reasons to be pretext for discrimination on any of his alleged bases, and had not demonstrated that he was so plainly superior to the selectees as to require a finding of discrimination.
In its decision (FAD #6) for complaint #6 (Agency No. 10-00167-01369, EEOC Appeal No. 0120113935), dated July 8, 2011, and mailed on July 28, 2011, the Agency found that in September 2009, the Agency initiated recruitment for and announced the position of Manager, ND-6, who would serve as a Deputy Department Head. On October 20, 2009, an internal certificate was issued, with nine competitive candidates, and five non-competitive candidates. Complainant was not listed on the certificate. On February 14, 2010, the selectee was appointed to the position, pursuant to the selection process established by the selecting official.
The Agency decision assumed that Complainant had established his prima facie cases on all alleged bases. It found that it had articulated legitimate, nondiscriminatory reasons for not selecting Complainant for each position. The selecting official stated that he had no role in determining who would be listed on the certificate, and so had no part in deciding that Complainant would not be considered for the position. The Human Resources Specialist who issued the selection certificate stated that she pulled resumes for the certificate based on a showing of the appropriate skills for the duties of the position. The Agency concluded that Complainant had not shown the Agency's reasons to be pretext for discrimination on any of his alleged bases, and had not demonstrated that he was so plainly superior to the selectees as to require a finding of discrimination.
The Agency decisions concluded that Complainant failed to prove that the Agency subjected him to discrimination based on his national origin, age or in reprisal for his extensive past EEO activity. Complainant thereafter filed the instant appeals.
CONTENTIONS ON APPEAL
In his arguments in support of his appeals, Complainant argued at length that the AJ had abused his discretion in dismissing Complainant's hearing request, and accused the AJ and the Agency Counsel of improper behavior, using much of the same inflammatory language and arguments that the AJ found to be improper and without merit. Complainant also argued that the Commission should reverse the Agency's findings of no discrimination and issue decisions in his favor.
The Agency filed statements in opposition to Complainant's appeals, in which it argued that the AJ had made an appropriate decision to dismiss the hearing requests, given the history of Complainant's behavior and failure to comply with AJ Orders. It also urged the Commission to affirm its findings on the merits of Complainant's complaints.
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 (EEO MD-110), at Chap. 9, � VI.A. (Nov. 9, 1999) (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 Agency's procedural dismissals
In each complaint, the Agency dismissed one or more of Complainant's claims under various parts of 29 C.F.R. � 1614.107(a). We have reviewed the Agency's procedural dismissals in each instance and find that the Agency correctly determined that the claims in question should be dismissed.
We note that we have previously affirmed the Agency's dismissals of Complainant's complaints of discriminatory non-selections for abuse of process in Y. Stoyanov v. Dep't of the Navy, EEOC Appeal Nos. 0120110604, 0120111454, 0120111991 (April 20, 2011); Y. Stoyanov v. Dep't of the Navy, EEOC Appeal Nos. 0120113142, 0120113817, 0120114019 (December 6, 2011); and Y. Stoyanov v. Dep't of the Navy, EEOC Appeal No. 0120100479 (December 28, 2011).
AJ's dismissal of hearing requests
The AJ dismissed Complainant's hearing requests on the basis of Complainant's "contumacious and flagrant disregard" for adherence to the AJ's Orders. He found that Complainant had used "vituperative language" in reference to the Agency Counsel and Commission AJs, in clear contravention to the Orders of the AJ.
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, up to and including a default judgment. Id.; see Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005); Rountree v. Dep't of the Treasury, EEOC Appeal No. 07A00015 (July 17, 2001). We find that the AJ was well within the bounds of discretion when he dismissed Complainant's hearing requests with prejudice, as clearly, no other sanction would seem to have any effect on modifying Complainant's behavior. The AJ appropriately dismissed Complainant's hearing requests and remanded the complaints to the Agency for decisions on the record.
Agency's findings
We turn to whether the Agency findings of no discrimination are supported by the evidence in the records. To prevail in a disparate treatment claim such as this, complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the particular case. McDonnell Douglas, 411 U.S. at 804, n. 14. The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the agency's explanation is pretextual. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 519 (1993).
We assume that Complainant has established his prima facie cases of discrimination on the bases of his national origin, age and reprisal. This shifts the burden to the Agency to articulate legitimate, nondiscriminatory reasons for its actions. A review of the records for the complaints at issue in these six appeals finds evidentiary support for each of the reasons for the Agency's actions, as articulated in the final Agency decisions. We do not find that Complainant has shown that the Agency's reasons were pretext for discrimination, and there is no evidence in the record to support Complainant's contentions.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decisions finding Complainant did not establish that he was subjected to unlawful discrimination, as alleged.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
The Commission may, in its discretion, reconsider the decision in this case if the 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 (OFO) 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; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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 (S0610)
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. 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. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you 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 with the Court does not extend your 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
October 11, 2012
Date
1 Department of the Navy Central Adjudication Facility.
2 Complainant's employment with the Agency was terminated effective March 31, 2010. His removal was upheld by the Merit Systems Protection Board (MSPB) in Y. Stoyanov v. Department of the Navy, MSPB No. DC-0752-10-0472-I-1 (January 4, 2011), petition for review denied (August 8, 2011). There is no record of Complainant filing a petition for review of the MSPB's decision with the Commission.
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0120113931
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120113931-0120113936