Shena S., Complainant, v. Jeffrey Shell, Director, Broadcasting Board of Governors, Agency. Appeal No. 0120110117 Agency No. OCR 09-16 DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant's appeal from the Agency's August 18, 2010 final decision 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an International TV Broadcaster at the Agency's Office of Cuba Broadcasting, Broadcast Operations Directorate, News Division, TV Branch. On August 13, 2009, Complainant filed a formal complaint alleging that Agency management unlawfully retaliated against her for engaging in prior protected EEO activity when she was subjected to the following events: 1. Around the last week of May or the early part of June 2009, an employee told Complainant that he had been ordered by a manager not to speak to her and that he was afraid of losing his job if he did. 2. On or about June 18, 2009, Complainant was told by the Director of Programs, in the presence of four other employees, that the Director and other employees had been instructed not to speak to Complainant. 3. On or about August 4, 2009, during a meeting with the management about the proposed Reduction-In-Force, Complainant was told that her job would be affected.1 4. August 11, 2009, Complainant was told by a former employee that a management official told him that Complainant had "denounced" him to the Inspector General. Complainant asserted that this was false. 5. September 1, 2009, Complainant discovered that a memorandum written by the Program Director, attached to her current performance evaluation, included untrue and negative comments about her work performance. 6. September 17, 2009, Complainant was issued a letter of admonishment by her immediate supervisor (Supervisor). The letter indicated it was based on Complainant's conduct during a meeting with the Supervisor regarding her performance appraisal. The Agency accepted the complaint for investigation on August 28, 2009. Following the completion of the investigation, Complainant requested a final Agency decision. The Agency issued its final decision on August 18, 2010. The Agency reviewed each incident and determined that the individual events were either not proven to have occurred as alleged or were not sufficiently severe or pervasive to create a hostile work environment. Moreover, although the Agency conceded that some of the responsible management officials were aware of Complainant's prior EEO activity, the Agency determined that Complainant failed to prove the disputed events occurred because of that prior protected activity. On October 4, 2010, Complainant filed the instant appeal. By letter dated October 25, 2010, the Office of Federal Operations (OFO) notified the Agency of the filing and that it was required to submit a copy of the entire complaint file within thirty (30) calendar days of the Agency's receipt of the letter of notification. The October 25, 2010 letter advised the Agency that failure to submit the entire complaint file within the specified time frame could result in the Commission drawing an adverse inference. The Agency failed to comply with this notice and OFO had not received the complete complaint file. On July 10, 2014, OFO issued the Notice to Show Good Cause Why Sanctions Should Not Be Imposed (Notice). In the Notice, OFO requested that the Agency provide the complete complaint file within thirty (30) days or show good cause why it cannot do so. OFO warned that it may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the Agency; (2) consider the matters to which the requested information pertains to be established in favor of the Complainant; (3) issue a decision fully or partially in favor of the Complainant; or (4) take such other action(s) as appropriate. The Agency failed to respond to the Notice. Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U. S. Postal Service, EEOC 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. Department of Veterans Affairs, EEOC Request No. 0520080052 (September 25, 2009); Gray v. Department of Defense, EEOC Appeal No. 07A50030 (March 1, 2007); Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). Several factors are considered in "tailoring" a sanction and determining if a particular sanction is warranted: (1) the extent and nature of the non-compliance, and 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; and (4) the effect on the integrity of the EEO process. Royal, EEOC Request No. 0520080052; Gray, EEOC Appeal No. 07A50030. In the case at hand, we find that: (1) the Agency has repeatedly failed to comply with EEOC's requests for the complete complaint file, and (2) there has been an excessively long delay with no meritorious explanation provided by the Agency. With the complaint file, we are unable to properly review whether Agency's findings and conclusions in this case are supported by the evidence of record. In this circumstance, we conclude that the most appropriate sanction is default judgment for Complainant. After deciding to issue a default judgment for a complainant, we need to determine if there is evidence that establishes Complainant's right to relief. One way to show a right to relief is to establish the elements of a prima facie case. See Royal, EEOC Request No. 0520080052; see also Matheny v. Department of Justice, EEOC Request No. 05A30373 (April 21, 2005). The anti-retaliation provisions of the employment discrimination statutes seek to prevent an employer from interfering with an employee's efforts to secure or advance enforcement of the statutes' basic guarantees, and are not limited to actions affecting employment terms and conditions. Burlington Northern & Santa Fe Railroad. Co. v. White, 548 U. S. 53, 126 S. Ct. 2405 (2006). Complainant must prove that she was subjected to actions which a reasonable employee would have found materially adverse, and these actions could dissuade a reasonable employee from making or supporting a charge of discrimination. Id. While trivial harms may not be sufficient to meet this burden, the significance of the acts of alleged retaliation will often depend upon the particular circumstances. While the Agency, in its final decision, determined Complainant had not established a prima facie claim of retaliation, we conclude otherwise. The Agency has conceded in its decision that at least some of the relevant management officials were aware of Complainant's prior EEO activity. It is also undisputed that Complainant was subjected to adverse actions in the form of a letter of admonishment, and a memorandum critical of her work performance attached to her performance appraisal. Moreover, it appears more likely than not that she was told, as alleged, that she would be affected by the RIF, as the very next month Complainant actually received notice that she was being demoted pursuant to the RIF. Complainant further claims that the critique of her work appended to her performance appraisal harmed her when she had to get another position because of the RIF. Finally, while the Agency contends Complainant did not provide any evidence to support her other allegations, the lack of a complaint file makes it impossible for us to determine whether there is support for the Agency's contention. Therefore, we will have to assume that Complainant's allegations are true. In sum, we find that there is sufficient information in the sparse record before us to find that Complainant established a prima facie case of retaliation. This finding entitles Complainant to individual remedies based on our default judgment against the Agency. CONCLUSION Based on a thorough review of the record, the Commission REVERSES the FAD and REMANDS this matter for further processing in accordance with this decision and the ORDER below. ORDER (D0610) The Agency is ordered to take the following remedial action within thirty (30) calendar days of the date this decision becomes final: 1. The Agency shall give Complainant a notice of her right to submit objective evidence (pursuant to the guidance given in Carle v. Dep't of the Navy, EEOC Appeal No. 01922369 (Jan. 5, 1993)) in support of her claim for compensatory damages within forty-five (45) calendar days of the date Complainant receives the Agency's notice. The Agency shall complete the investigation on the claim for compensatory damages within forty-five (45) calendar days of the date the Agency receives Complainant's claim for compensatory damages. Thereafter, the Agency shall process the claim in accordance with 29 C.F.R. § 1614.110. 2. The Agency shall rescind the September 17, 2009 Letter of Admonishment and the negative statement attached to her performance appraisal and remove any references to these documents from all Agency records. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." POSTING ORDER (G0610) The Agency is ordered to post at its Office of Cuba Broadcasting facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted by the Agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (60) consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. The Agency shall take reasonable steps to ensure that said notices are not altered, defaced, or covered by any other material. The original signed notice is to be submitted to the Compliance Officer at the address cited in the paragraph entitled "Implementation of the Commission's Decision," within ten (10) calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the Agency. The attorney shall submit a verified statement of fees to the Agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The Agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. IMPLEMENTATION OF THE COMMISSION'S DECISION (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, 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 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 November 6, 2014 __________________ Date 1 On September 21, 2009, Complainant submitted a request to amend her complaint to add a claim of reprisal in connection with a RIF decision she received from the Agency on September 16, 2009, downgrading her to the position of TV Production Specialist, GS-12. The Agency determined this was a mixed case complaint and accepted it as a separate complaint docketed as Agency Case No. OCR-09-21. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120110117 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120110117