ANH THU VU, COMPLAINANT,
v.
MICHAEL J. ASTRUE, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, AGENCY.

Appeal No. 0120072632
Hearing No. 480-2006-00099X
Agency No. 05-0275-SSA

On December 22, 2006, Complainant filed an appeal concerning her equal employment opportunity (EEO) complaint 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. The Commission deems this appeal as timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order and REMANDS the complaint for an administrative hearing.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Service Representative at the Newport Beach District Office in Newport, California.

Complainant filed a formal EEO complaint on May 5, 2005, alleging that the Agency discriminated against her on the bases of national origin (Vietnamese) and in reprisal for prior protected EEO activity when she was subjected to non-sexual harassment and a hostile work environment. Complainant cited the following incidents of harassment:

1. in December 2004, as Complainant was preparing to submit a number of applications for positions in other regions, the District Manager told Complainant that she would not recommend her for any of the promotions if she were contacted by any of the selecting officials. Complainant claims that as a result of this statement, she was not selected for any of the positions of Claims Representative, GS-105-5/7/9/11, for which she applied;1

2. on January 9, 2005, the District Manager yelled at Complainant when Complainant suggested that she could help with the backup at the reception window and instructed Complainant to keep doing what she was doing. However, when a White co-worker made the same suggestion, the District Manager reacted civilly and accepted the suggestion as a constructive way to handle the reception area crowd; and

3. on March 17 and 18, 2005, Complainant's training request was denied by the District Manager.

At the conclusion of the investigation, Complainant was provided a copy of the investigative file and requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision without a hearing finding no discrimination. The AJ's decision dated September 29, 2006, only stated "For the reasons stated in the Agency's original Motion and in its Supplemental Brief, and based on the Complainant's admission of facts concerning her ability to communicate verbally with Agency clients, Agency is granted Decision without Hearing on all issues and bases in the above-referenced matter."

The Agency failed to issue a final order within forty days of receipt of the AJ's decision. Accordingly, the AJ's decision became the Agency's final action pursuant to 29 C.F.R. § 1614.109(i).

CONTENTIONS ON APPEAL

On appeal, Complainant requested the appointment of legal counsel to assist her in the preparation of her appeal, in accordance with the AJ's Decision without a Hearing, "Notice to the Parties."

The Agency made no contentions on appeal.

STANDARD OF REVIEW

In rendering this appellate decision we must scrutinize the AJ's legal and factual conclusions, and the Agency's final order adopting them, de novo. See29 C.F.R. § 1614.405(a) (stating that a "decision on an appeal from an Agency's final action shall be based on a de novo review . . ."); see also EEOC Management Directive 110, Chapter 9, § VLB. (November 9, 1999). (providing that an administrative judge's "decision to issue a decision without a hearing pursuant to [29 C.F.R. § 1614.109(g)] will be reviewed de novo"). This essentially means that we should look at this case with fresh eyes. In other words, we are free to accept (if accurate) or reject (if erroneous) the AJ's, and Agency's, factual conclusions and legal analysis -- including on the ultimate fact of whether intentional discrimination occurred, and on the legal issue of whether any federal employment discrimination statute was violated. Seeid. at Chapter 9, § VI.A. (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").

ANALYSIS AND FINDINGS

As an initial matter, despite her request on appeal, Complainant is advised that the Commission does not appoint attorneys to represent complainants on appeal. The AJ's "Notice to the Parties" advised Complainant that in the event she files a civil action in a federal district court, she may ask the court to appoint an attorney to represent her if she cannot afford the services of an attorney. See the similar paragraph below entitled "Right to Request Counsel."

With regard to the main issue on appeal, we must determine whether it was appropriate for the AJ to have issued a decision without a hearing on this record. The Commission's regulations allow an AJ to issue a decision without a hearing when he or she finds that there is no genuine issue of material fact. 29 C.F.R. § 1614.109(g). This regulation is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. The U.S. Supreme Court has held that summary judgment is appropriate where a court determines that, given the substantive legal and evidentiary standards that apply to the case, there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In ruling on a motion for summary judgment, a court's function is not to weigh the evidence but rather to determine whether there are genuine issues for trial. Id. at 249.The evidence of the non-moving party must be believed at the summary judgment stage and all justifiable inferences must be drawn in the non-moving party's favor. Id. at 255.An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the non-moving party. Celotex v. Catrett, 477 U.S. 317, 322-23 (1986); Oliver v. Digital Equip. Corp., 846 F.2d 103, 105 (1st Cir. 1988). A fact is "material" if it has the potential to affect the outcome of the case.

We find that the record before us was not the same record presented to the AJ. Specifically, we note that in her decision without a hearing the AJ adopted and relied upon the "Agency's original Motion" for a decision without a hearing and the "Agency's Supplemental Brief." However, the record before us does not contain either of those documents despite repeated efforts by the Commission to obtain them. Under the Commission's regulations, the Agency is required to submit complete complaint files to the Office of Federal Operations within 30 days of initial notification of the appeal, which in this case was in May 2007. 29 C.F.R. § 1614.403. We have additionally requested the complete file from the Agency on at least four other occasions: June 2009, September 2009, May 2010, and, most recently on September 16, 2010, when we issued a "Notice to Show Good Cause Why Sanctions Should Not Be Imposed" (Notice to Show Cause). The Notice to Show Cause ordered the Agency to submit the complete file or good cause evidence and argument, if any, within (20) calendar days. However, the Agency failed to timely submit the requested documents. The record reveals that the Agency sent Complainant's file on September 28, 2010, but the requested documents were not included.2

We find that the Agency's failure to submit a complete complaint file and its failure to issue a final order has rendered the record before us insufficient for a determination on the merits. In deciding an appeal on an AJ decision without a hearing it is imperative that we have a copy of the parties' motions in support and in opposition to the decision. See Hill v. Department of Labor, EEOC Appeal No. 01A42143 (July 19, 2006). In this particular case, we cannot make a determination on the merits without the Agency's motion for a decision without a hearing because the AJ's decision (which is the final decision in this case) adopted the Agency's motion. The AJ provided no independent analysis or explanation of her decision finding no discrimination.3  Accordingly, we find that the record is insufficient to allow a proper determination on the merits of Complainant's claims.

Further, based on the conduct of the Agency in this case, we find that the imposition of sanctions is warranted. The Commission repeatedly requested the complete complaint file from the Agency. The Agency was on notice that sanctions were possible if the Agency failed to comply. The Agency failed to submit the documentation requested and, consequently, a decision cannot be rendered on the case.

Sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, it may be an abuse of discretion to impose a harsher sanction. See Gray v. Department of Defense, EEOC Appeal No. 07A50030 (March 1, 2007); Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). Factors pertinent to "tailoring" a sanction, or determining whether a sanction is, in fact, warranted, would necessarily include the extent and nature of the non-compliance, to include the justification presented by the non-complying party; the prejudicial effect of the non-compliance on the opposing party; the consequences resulting from the delay in justice, if any; and, the effect on the integrity of the EEO process. Id.

Under the circumstances of this case, lacking the full basis for the AJ's decision without a hearing and based on our determination that the record before us remains incomplete as a direct result of the Agency's failure to submit the complete complaint file, we hereby VACATE the AJ's decision without a hearing and REMAND the matter for a full hearing on the merits. Furthermore, we find that an additional sanction is warranted and the Agency is hereby ordered to notify Complainant of her entitlement to retain an attorney for the hearing and the Agency will be required to pay Complainant's attorney's fees for the entire hearing process.


CONCLUSION

Therefore, after a careful review of the record, the Commission VACATES the AJ's decision without a hearing, and REMANDS the matter to the Agency for further processing in accordance with this decision and the Order below.

ORDER

1. Within ten (10) calendar days of the date this decision becomes final, the Agency shall notify Complainant that she is entitled to be represented by an attorney of her choice during the entire hearing process. The Agency shall pay for her attorney's fees incurred during the hearing process, regardless of the outcome of her case. The hearing process commences as soon as an AJ receives Complainant's file and does not conclude until the AJ issues a decision on the complaint. Complainant shall choose an attorney within thirty (30) calendar days of the date she receives the Agency's notification.

2. The Agency shall submit to the Hearings Unit of Los Angeles District Office the request for a hearing within fifteen (15) calendar days of the date this decision becomes final. The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below 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 (K0610)

Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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.

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 (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 (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 etseq.; 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

January 20, 2011

1. The record shows that Complainant applied for the following vacancies: SSA-05-038, Grays Harbor, WA District Office; SSA-05-040, Olympia, WA District Office; SSA-05-046, Bellevue, WA District Office; SSA-05-048, Seattle DO, WA District Office; SSA-05-50, Seattle, N, WA District Office; SSA-05-052, Seattle, S, District Office; SSA-05-054, Tacoma, WA District Office; SSA-05-056, Spokane, WA District Office; SSA-05-064, Burien, WA District Office; SSA-05-080, Centralia, WA District Office; and SSA-05-464, Glendale, AZ District Office.

2. The Commission received a copy of the "Introduction" for summary judgment on October 18, 2010, which was beyond the (20) day time limitations period in the Notice to Show Cause.

3. We remind the AJ that it is part of the AJ's duties to set forth an independent statement of facts. See Labella v United States Postal Service, Appeal No. 0120082255 (October 22, 2010).