Amina W.,1 Complainant, v. Dr. Ernest Moniz, Secretary, Department of Energy, Agency. Appeal No. 0120113823 Hearing No. 570-2008-00658X Agency Nos. 97(183)HQDP; 98(093)HQ DECISION On July 23, 2011, Complainant filed an appeal from the Agency's June 21, 2011, final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 appeal pursuant to 29 C.F.R. § 1614.405(a). For the reasons that follow, the Agency's final order is REVERSED. ISSUE PRESENTED The issue presented is whether the Commission should issue a default judgment against the Agency for failing to comply with a Notice to Show Cause Order that directed it to either submit a complete copy of the complaint file or provide good cause why sanctions should not be imposed. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Administrative Support Specialist, GS-301-09, within the Office of Defense Programs in Germantown, Maryland. In February 1996, Complainant was assigned to the Agency's Human and Administrative Resources Group of Defense Programs (DP-44), located at the Agency's Headquarters (HQ) in Washington, D.C. She attended training for her new position at the Agency's Germantown Maryland campus, riding the Agency shuttle bus. In late April 1996, the bus was in an accident, and Complainant sustained a serious head injury; after convalescence, she returned to work. On August 1, 1997, and May 28, 1998, Complainant filed two EEO complaints alleging that her immediate supervisor (S1) and her second-level supervisor (S2) discriminated against her. Specifically, she alleged discrimination on the bases of race (Black), national origin (African-American), color (black), disability (mental and physical), age (55), and reprisal for prior protected EEO activity when: 1. On February 11, 1997, she received a lower performance appraisal of fully satisfactory; 2. On February 11, 1997, her supervisor fabricated statements about her during her performance evaluation; 3. On February 11, 1997, no accommodations were made during her performance evaluation; 4. On February 18, 1997, her supervisor failed to reassign her to a different employment series; 5. On March 26, 1997, she was forced to take a test regarding her knowledge of personnel matters; 6. On June 27, 1997, she was forced to take a test regarding her knowledge of personnel matters; 7. On June 22, 1997, she was given a 360-degree performance plan evaluation which she believed had not been approved by the Agency; 8. By August 6, 1997, she failed to receive a mid-year performance plan evaluation for 1997; 9. Effective January 12, 1998, her position was eliminated during a Reduction-in- Force and she was downgraded from Program Specialist, GS-301-09, to "entry level" Secretary, GS-318-08; 10. On February 26, 1998, she received a performance rating for the 1997 performance evaluation period that was lower than she deserved; 11. In March 1998, she was not selected for the position of Management Analyst, GS-343-11, under Vacancy Announcement 98-DP-00-288; and 12. In March 1998, she was not selected for the position of Management Analyst, GS-343-11, under Vacancy Announcement 98-DP-00-303. Initially, the Agency processed the two complaints separately and issued final decisions on both. Complainant appealed both decisions to the Commission. Subsequently, the Commission found that the Agency erred by failing to consolidate all of the claims raised in the two complaints, and in recognizing that Complainant's claims concerned a pattern of discrimination. EEOC Request No. 05A20614 (June 14, 2002). The Agency, among other things, was therefore ordered to: [F]ully investigate Complainant's RIF claim, and in conjunction with this investigation, conduct any further investigation necessary on the additional claims raised in complaint # 97(183) and complaint # 98(093), with the aim of addressing all of Complainant's claims as a consolidated complaint alleging a pattern of discrimination. Subsequently, the Agency conducted a supplemental investigation and again found that Complainant had not established that she was discriminated against. In EEOC Appeal No. 0120062364 (September 12, 2007), request to reopen denied 0520080074 (November 15, 2007), the Commission found: For many reasons, the agency failed to comply with all of the Commission's order. In the first instance, the Commission directed the agency to combine the two complaints and re-adjudicate them "as a consolidated claim." The Order defined the remanded matter as "all of the claims raised" in the two complaints plus two issues that were ignored by the agency, i.e., the "RIF claim" and the 1996 performance rating claim. The agency, however, issued separate decisions, failed to "re-adjudicate" the complaints as a consolidated complaint, and did not complete its processes within 180 days.[2] In fact, the agency repeated the earlier improper fragmentation. In addition, although the cover page of the Supplemental Report of Investigation (SROI) identified both complaints, review of the SROI reveals that no attempt was made to combine the two complaints and investigate them as a consolidated claim of harassment, i.e., no new witnesses, such as complainant's former co-workers, other supervisors, higher-level managers, or personnel specialists, were interviewed; no new medical evidence was sought to show the progress of complainant's cognitive abilities; no attempt to intermingle the events identified in both complaints was made; and, as for the two issues ignored by the agency, only limited historical documentation was included. The only "new" material in the SROI was a statement from S1,[3] who largely reiterated her previous statements, and a statement from an agency witness addressing the RIF process in general terms. Complainant submitted briefs and statements to the record, including her rebuttal statements in the SROI, and neither the investigator nor the agency investigated or answered any of the matters she raised. Our decision of July 14, 2002,[4] held that the agency erred when it failed to consolidate C1 and C2 into a single claim of harassment/hostile work place, and that claim required different treatment than traditional disparate treatment claims. This decision finds that the agency has not yet complied with the Order from that decision. Although we are reluctant to remand these complaints, to avoid additional fragmentation of complainant's EEO claims, we are left with no option other than to do so. The agency is hereby notified that if it fails to comply with the Commission's Order below, or show good cause why it cannot do so, the Commission may draw an adverse inference against the agency, issue a decision fully or partially in favor of the complainant, or take such other action(s) as appropriate. 29 C.F.R. § 1614.404(c). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant timely requested a hearing, which the AJ held and issued a bench decision on May 9, 2011. The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not prove that the Agency subjected her to discrimination as alleged. Complainant appealed the Agency's final order to the Commission. Upon receipt of Complainant's appeal, the Office of Federal Operations (OFO) sent the Agency a letter dated August 30, 2011, asking it to provide the Commission with the complete record pertaining to the complaint within 30 calendar days. See 29 C.F.R. § 1614.403. The Agency partially complied with this request. On May 7, 2015, OFO issued a "Notice to Show Good Cause Why Sanctions Should Not Be Imposed" (Notice). The Notice ordered the Agency to submit the complete complaint file or provide good cause why it could not, through evidence and argument. Among other things, the Notice emphasized that the hearing transcript was missing from the record. The Notice further stated, in pertinent part, that: The Agency is hereby notified that if it fails to submit the entire record in twenty (20) days or show good cause why it cannot do so, OFO 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 did not respond and therefore we have not been provided any justification for its failure to produce the requested documents.5 ANALYSIS AND FINDINGS Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 7-3 (Aug. 5, 2015) provides, in pertinent part, that "[t]he agency shall arrange and pay for a verbatim transcript (printed or typewritten) of the hearing proceedings pursuant to § 1614.109(h).6 Furthermore, "[t]he agency shall take any steps necessary to ensure that the transcript is provided as expeditiously as possible." Id. Based on the Agency's failure to submit the hearing transcripts in this case, we find that the imposition of sanctions is warranted. See Complainant v. Department of the Air Force, EEOC Appeal No. 0120110789 (Sept. 24, 2013) (sanction was found to be appropriate where the agency failed to provide a copy of the hearing record including the hearing transcripts); Vu v. Soc. Sec. Admin., EEOC Appeal No. 0120072632 (Jan. 20, 2011) (sanctions appropriate where the agency failed to provide the Commission with motions and responses in support and opposition to decision without a hearing). 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 Serv., 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. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). 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. Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007). In the case at hand, we find that the Agency has repeatedly failed to comply with EEOC's Orders in this case, including our most recent request for the complete complaint file, and (2) there has been no explanation provided by the Agency for its failure to comply. In the absence of the hearing record, including the hearing transcripts, we are simply unable to properly review whether the record supports the AJ's determination that Complainant failed to establish discrimination or that she was subjected to a hostile work environment. We also find that Complainant is profoundly prejudiced by the Agency's failure to provide the hearing transcript and other hearing documents. Finally, we note that, with regard to the fourth factor, the effect on the integrity of the EEO process, should not be underestimated when tailoring a sanction. Cox v. Soc. Sec. Admin., EEOC Appeal No. 0720050055 (Dec. 24, 2009). "Protecting the integrity of the 29 C.F.R. Part 1614 process is central to the Commission's ability to carry out its charge of eradicating discrimination in the federal sector." Id. The Commission must insure that all parties abide by its regulations and orders. Based on all of the above, we find that the most appropriate sanction is a default judgment in Complainant's favor. Accordingly, we find that the Agency discriminated against Complainant as alleged. See Complainant v. Broadcasting Bd. of Governors, EEOC Appeal No. 0120110117 (Nov. 6, 2014). Our decision to issue a default judgment will effectively emphasize to the Agency the need to comply with Commission orders in a timely manner, as well as ensure that future Agency investigations are adequately developed for adjudication. Remedy Following Default Judgment Claims (11) and (12): After deciding to issue a default judgment, we need to determine if there is evidence that establishes Complainant's right to relief. The Commission has held that one way to show a right to relief is to establish the elements of a prima facie case. See Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009); see also Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005). In order to establish a prima facie case of race and color, Complainant must demonstrate that: (1) she is a member of a protected class, (2) she was subjected to adverse treatment, and (3) she was treated differently than otherwise similarly situated employees outside of her protected class. Walker v. U.S. Postal Serv., EEOC Appeal No. 01A14419 (Mar 13, 2003); Ornelas v. Dep't of Justice, EEOC Appeal No. 01995301 (Sept. 26, 2002). The record indicates that the Agency selected CW-1 (Caucasian, white, no national origin indicated) for Vacancy Announcement 98-DP-00-288 and CW-2 (Caucasian, white, American) for Vacancy Announcement 98-DP-00-303.7 Complainant, as noted above, listed her race as Black and her color as black; therefore, we find that she has established a prima facie case of race and color discrimination. With respect to reprisal, Complainant can establish a prima facie case of reprisal discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Shapiro v. Soc. Sec. Admin., EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, Hochstadt v. Worcester Foundation for Experimental Biology, 425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976), and Coffman v. Dep't of Veteran Affairs, EEOC Request No. 05960473 (Nov. 20, 1997), a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in a protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. Whitmire v. Dep't of the Air Force, EEOC Appeal No. 01A00340 (Sept. 25, 2000). The Agency conceded that Complainant had established a prima facie case of reprisal discrimination regarding Vacancy Announcement 98-DP-00-288 (claim 11), but, with respect to Vacancy Announcement 98-DP-00-303 (claim 12), argued that the Selecting Official, S3, the Assistant Secretary for Defense Programs, was not aware of Complainant's EEO activity at the time he made the selection decision. The record, however, shows that the DP-44 unit processed the Vacancy Announcement at issue; therefore, we find that it is more than reasonable to conclude that S1 or S2 provided input to S3 about Complainant, who was a member of DP-44, including the fact that she had filed an EEO complaint against them in August 1997 which was still ongoing. Upon review, we find that retroactively promoting Complainant to a Management Analyst position, GS-343-11, with back pay is an appropriate remedy in this case because Complainant was able to establish prima facie cases of discrimination based on race, color, and reprisal. In addition to the individual remedies of retroactive promotion and back pay, she may also be entitled to an award of compensatory damages and/or attorney's fees as a prevailing party. With regard to Complainant's contention that she was subjected to a pattern of discrimination with respect to her hostile work environment claim, and her other claims of discrimination, we find no persuasive evidence that would support an inference that these incidents were linked to any of her protected bases. Consequently, although we find that Complainant was subjected to discrimination here pursuant to our default judgment against the Agency, we do not find an entitlement to individual right of relief for these matters. CONCLUSION Accordingly, the Commission REVERSES the Agency's final order REMANDS the matter in accordance with this decision and the ORDER below. ORDER Unless otherwise indicated, the Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision becomes final: 1. The Agency shall offer Complainant a retroactive promotion to the position of Management Analyst, GS-343-11, or to a substantially equivalent position. The effective date of her promotion shall be date that CW-1 and CW-2 were promoted, whichever was earlier. Complainant shall have fifteen (15) days from the date of the offer to accept or decline the position. If Complainant should decline the Agency's offer of a position, the date of her rejection shall be the end date for any back pay due Complainant. 2. The Agency shall determine the appropriate amount of back pay, with interest, and other benefits due Complainant, pursuant to 29 C.F.R. § 1614.501. Complainant shall cooperate in the Agency's efforts to compute the amount of back pay and benefits due, and shall provide all relevant information requested by the Agency. If there is a dispute regarding the exact amount of back pay and/or benefits, the Agency shall issue a check to Complainant for the undisputed amount. Complainant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 3. The Agency shall conduct a supplemental investigation on compensatory damages, including providing Complainant an opportunity to submit evidence of pecuniary and non-pecuniary damages. For guidance on what evidence is necessary to prove pecuniary and non-pecuniary damages, the parties are directed to EEOC Enforcement Guidance: Compensatory and Punitive Damages Available Under § 102 of the Civil Rights Act of 1991 (July 14, 1992) (available at eeoc.gov.) The Agency shall complete the investigation and issue a final decision appealable to the EEOC determining the appropriate amount of damages. 4. The Agency shall provide a minimum of eight (8) hours of in-person training to its EEO managers and staff regarding their responsibilities concerning case processing and insuring that the EEOC is provided complete EEO complaint files. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Human and Administrative Resources Group of Defense Programs (DP-44), located at its Headquarters in Washington, D.C., facility copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 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 (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (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 Complainants Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations __11/17/15________________ Date 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 Although the 180 day period to investigate the complaints expired on January 15, 2003, the decision noted that the ROI was dated June 26, 2003. 3 S2 has since passed away. 4 The correct date was June 14, 2002. 5 We note that on February 14, 2002, OFO issued its first Show Cause Order in this matter, regarding the Agency's failure to provide the complaint file pertaining to Complaint No. 97(183)HQ, which is one of the complaints at issue here. 6 29 C.F.R. § 1614.109(h) provides: The hearing shall be recorded and the agency shall arrange and pay for verbatim transcripts. All documents submitted to, and accepted by, the administrative judge at the hearing shall be made part of the record of the hearing. If the agency submits a document that is accepted, it shall furnish a copy of the document to the complainant. If the complainant submits a document that is accepted, the administrative judge shall make the document available to the agency representative for reproduction. 7 Based on the record, there is a question as to whether Complainant ever intended to raise age as a basis of discrimination. In this regard, we note that CW-1 and CW-2's ages are not provided. Likewise, there is no clear indication of their national origins. Because there would be no change in the remedy provided to Complainant, we will limit our focus to the bases of race, color and reprisal. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120113823 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120113823