U.S. Equal Employment Opportunity Commission (E.E.O.C.) Office of Federal Operations * * * GERALD L.,1 COMPLAINANT, v. ANTHONY FOXX, SECRETARY, DEPARTMENT OF TRANSPORTATION, (FEDERAL RAILROAD ADMINISTRATION) AGENCY. Appeal No. 0120123187 Hearing No. 430-2007-00030X Agency No. 200519018FRA03 December 17, 2015 DECISION On August 6, 2012, Complainant filed an appeal from the Agency's July 26, 2012, final order concerning his 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The U.S. Equal Employment Opportunity Commission (EEOC or Commission) deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND From 1989 to 1997 Complainant worked as a Motive Power and Equipment (MP&E) GS-12 Railroad Safety Inspector. He was terminated for poor performance in 1997.2 Starting in 1999 and continuing, Complainant began applying for various positions within the Federal Railroad Administration (FRA). Despite applying through numerous avenues and for numerous jobs, he was not selected. As a result of numerous non-selections, Complainant filed several EEO complaints and MSPB appeals. With respect to this pending complaint, Complainant initiated EEO contact on or about September 5, 2003. Thereafter, on February 23, 2005, Complainant filed his formal EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), national origin (European), sex (male), disability (impaired hearing and limited motion), and reprisal (for prior protected EEO activity) when he was not selected to more than 100 separate vacancies. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On November 24, 2006, the AJ issued an Acknowledgement Order, directing the parties to jointly define the issues presented by the complaint, develop stipulations, and discuss settlement within thirty days. On the same date, the AJ also issued a separate Scheduling Notice and Order, which directed the parties to submit a pre-hearing report, and set March 13, 2007, for a pre-hearing conference and April 3, 2007, for the hearing. On December 19, 2006, the Agency requested that the AJ stay all proceedings in this case pending a ruling on Complainant's then active Title VII case in the United States District Court for the Northern District of Georgia. See * * * v. Mineta, 1:00-CV-02437-ECS (filed Sept. 19, 2000). In that district court case the Agency asserted that, on June 27, 2006, Complainant had accepted the Agency's offer of a global settlement and on August 24, 2006, filed a motion to enforce the settlement agreement. The Agency indicated that it was still awaiting the district court's ruling on this matter. Therefore, in its motion before the AJ, the Agency urged the AJ to stay all proceedings until the district court determined whether or not the settlement agreement was binding on Complainant, which would require Complainant to withdraw his EEO complaint and eliminate the necessity for further administrative adjudication of the complaint. However, the AJ never ruled on the Agency's motion. In the meantime, Complainant filed numerous motions with the AJ, including various discovery requests. Despite having received such filings, the Agency did not respond to any of Complainant's requests. The Agency also did not appear at the pre-hearing conference on March 13, 2007, and did not submit a pre-hearing report, including witness lists, as required in the Scheduling Notice and Order. On March 16, 2007, following the AJ's telephone call to the Agency without response, the AJ issued an Order to Show Cause (SCO1) why the Agency should not be subject to sanctions for its non-compliance with his orders. The Agency timely responded to the SCO1 and asserted that the mail was delayed due to heightened mail security concerns. In addition, it claimed that it did not receive a copy of the scheduling notice and was not aware that a pre-hearing conference had been scheduled. The Agency further explained in its response that it only learned of the pre-hearing conference from the AJ's telephone call to the Agency after the conference had taken place. On July 24, 2007, the AJ issued a default judgment in Complainant's favor as a sanction to the Agency. On October 1, 2007, the district court denied the Agency's motion to enforce the settlement agreement. On September 5, 2007, the Agency appealed the default judgment. On August 13, 2009, the Commission concluded that the sanction imposed by the AJ was too harsh. The Commission vacated the AJ's default judgment and remanded the matter to the Agency for a determination as to whether the matter that remained pending in the district court addressed the same matter that is raised in the instant complaint. If the civil action was not the same matter as that raised in the instant formal complaint, the Agency was ordered to return the matter to the AJ for a hearing who was ordered to impose a lesser sanction.3 Finally, in its decision, the Commission noted that in a related default judgment matter which was upheld in Elston v. Dep't of Transportation, EEOC Appeal No. 07A50019, recon. denied Request No. 05A60283 (Jan. 5, 2006), a year prior to the issuance of the scheduling notice in this case, the Commission informed the Agency that mail delivery problems were no excuse for not complying with the orders of an AJ. See * * * v. Dep't of Transportation, EEOC Appeal No. 0720070078 (Aug. 12, 2009). On September 17, 2009, the Agency forwarded the complaint file to the EEOC Charlotte District Office and the matter was reassigned to an AJ. The AJ held a hearing on May 10, 2012, and issued a decision on July 11, 2012. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged. On August 6, 2012, Complainant appealed the Agency's final order. By letter dated August 30, 2012, the Agency was notified of the filing of the appeal and the requirement to submit a copy of the entire complaint file within 30 calendar days of the receipt of the notification letter. After receiving an incomplete file and despite failure of numerous informal attempts to correct the deficiencies in the file, on November 5, 2014, the Commission issued a Show Cause Order (SC02) which ordered the Agency to show cause why sanctions should not be imposed.4 On December 1, 2014, the Agency responded to the SC02 and produced the hearing transcripts along with many of the same documents previously submitted. However, it never produced the ROI or pre-hearing motions and orders. SANCTIONS Complainant asserts that the AJ's finding of no discrimination or reprisal is incorrect and further asserts that default judgment against the Agency is an appropriate sanction given the Agency's history of repeated and unjustified non-compliance with the Commission's orders. The Agency argues that the AJ's decision was correct and that sanctions should not be imposed. Specifically, the Agency states that after receiving the SC02 it "confirmed" that the "hearing file" had been received by the EEOC Office of Federal Operations (OFO) through the electronic portal on September 7, 2012. However, according to the Agency, OFO was unable to verify the specific documents in that submission. In addition, the Agency asserts that it resubmitted the "ROI Efile" and "Motions, pleadings, and other correspondence received from the agency counsel who had represented the [Agency] at hearing." The Agency notes that such files included approximately 13,000 pages of documents, including a "2,300 page ROI." The Agency also asserts that it provided the entire file before the AJ, and that it was not required to provide additional documents that were never before the AJ. The Agency also asserts that sanctions are not appropriate because it complied with the document request. The Agency further states that "if, for some reason those files did not properly upload to the OFO [portal], given their size or other unknown factors, the [Agency] had no way of knowing that until receiving the November 5, 2014 Order to Show Cause." The Agency also asserts that it resubmitted all requested documents in response to the SC02. However, even assuming that the Agency did not fully comply with the document request, the Agency asserts that the sanction requested by Complainant (i.e., default judgment) is not an appropriate sanction as it is not narrowly tailored to the extent and nature of the non-compliance. Lastly, the Agency argues that there is no prejudicial impact to Complainant because there is no indication that the decision-making process was delayed because of the Agency's non-compliance given the EEOC's backlog of its review process. Where either party to an appeal fails to comply with the appellate procedures in 29 C.F.R. § 1614.404 or fails to respond fully and in a timely fashion to requests for information, without good cause shown, OFO shall, in appropriate circumstances, impose any of the following sanctions: (1) draw an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information; (2) consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party; (3) issue a decision fully or partially in favor of the opposing party; or (4) take such other actions as appropriate. See 29 C.F.R. § 1614.404(c). OFO will aggressively utilize sanctions if parties fail, without good cause shown, to comply with the appellate procedures or to respond fully and timely to information requests. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110). Ch. 9 (Nov. 9, 1999). Sanctions may be used to effectuate the policies of the Commission by both deterring the non-complying party from similar conduct in the future and by providing an equitable remedy to the opposing party. Id. We note that the Commission has exercised its inherent authority to enforce its Part 1614 Regulations by ordering sanctions in response to various violations. See, e.g., DaCosta v. Department of Education, EEOC Appeal No. 01995992 (February 25, 2000) (Commission issued sanctions against agency for failure to complete timely investigation); Matheny v. Dep't of Justice, EEOC Req. No. 05A30373 (Apr. 21, 2005) (upholding a decision that affirmed an AJ's imposition of sanctions finding in favor of complainant as to all claims for the agency's failure to provide investigative reports). Sanctions must be tailored in each case to address appropriately the underlying conduct of the party being sanctioned. * * * v. Dep't of Transportation, EEOC Appeal No. 0720070078 (Aug. 13, 2009). A sanction may be used to deter the non-complying party from similar conduct in the future as well as to remedy equitably the opposing party. Id. Factors pertinent to "tailoring" a sanction or determining whether a sanction is warranted include the extent and nature of the non-compliance; 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 of the non-compliance on the integrity of the EEO process. Id. The Commission finds that the Agency produced the hearing transcript for the first time in response to the 2014 Show Cause Order (i.e., more than two years late) and despite assertions to the contrary has never produced the ROI. We also find the Agency's response to the SC02 disingenuous. Even assuming it believed that it had submitted the AJ's hearing files in 2012, OFO provided the Agency with written and verbal notice of document deficiencies throughout the two years without any response. Only after the Agency received the SC02 did it provide the actual hearing transcripts. However, despite its contrary assertions, we have not received the ROI. Given such inexplicable failings, along with this Agency's history of similar non-compliance issues, we find that the appropriate sanction for the Agency's non-compliance with the Commission's Part 1614 Regulation is to issue a decision partially in favor of Complainant. More specifically, the Commission notes that of all the non-selections at issue, the partial record contains the most available documentary evidence as to the selection process as to GS-13 Deputy Regional Administrator (DRA) position in Vancouver, Washington. The Commission finds that a complete ROI would show that Complainant established a prima facie case of reprisal as to the Agency's failure to select him for this DRA position on or about October 25, 2004. The available documentary evidence in the record establishes that on October 25, 2004, Complainant was deemed qualified and referred for the DRA position under the FRA's Affirmative Action Plan for the Hiring, Advancement and Placement of Individuals with Disabilities. Further, the record also establishes that the alleged responsible management official (RMO) was involved in the selection of DRA positions and was aware of Complainant's prior EEO activity at the time of this referral. However, Complainant was not selected for the position. As a result, the Commission finds that a complete ROI would have shown that Complainant established a prima facie case of reprisal as to that position. In sanctioning the Agency, the Commission shall draw the adverse inference that a complete ROI would show that the Agency's articulated non-retaliatory reasons for not selecting Complainant were false and pretext for reprisal. We therefore conclude that the Agency has not met its burden of production in response to Complainant's showing of his prima facie case of reprisal. We consequently find that Complainant is entitled to a finding of reprisal discrimination as to the Agency's failure to select him for the GS-13 DRA position in Vancouver, Washington. Nonetheless, the Commission affirms the AJ's decision as to the numerous other vacancies. While the record is devoid of documentation related to the selection and referral process (including but not limited to comparison employee information) with respect to these vacancies, substantial record evidence supports the AJ's findings of fact, and the Commission discerns no basis to disturb his conclusions of law. CONCLUSION For the reasons stated above the Commission finds that the Agency failed to show good cause for not fully complying with EEOC Regulation 29 C.F.R. § 1614.404. The Commission sanctions the Agency's violation of its regulations and instructions by finding that the Agency retaliated against Complainant based upon his prior EEO activity when on or about October 25, 2004, it failed to select him for the vacant position of Deputy Regional Administrator (DRA), GS-13, position in Vancouver, Washington. The Commission orders the Agency to fully remedy the retaliation in accordance with the Order below, and to demonstrate that it has taken steps to insure that the Agency's failure to produce the entire complaint file does not recur. ORDER Within 90 days from the date this decision becomes final: 1. The Agency shall offer to reinstate Complainant to the position of Deputy Regional Administrator (DRA), GS-13, position in Vancouver, Washington (or some other mutually agreeable position/location). Complainant shall be given a minimum of 30 calendar days from receipt of the offer within which to accept or decline the offer. Failure to accept the offer within the time period set by the Agency will be considered a rejection of the offer, unless Complainant can show that circumstances beyond his control prevented a response within the time limit. 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; 3. The Agency shall conduct a supplemental investigation on the issue of complainant's entitlement to compensatory damages and shall afford him an opportunity to establish a causal relationship between the October 25, 2004 non-selection noted above and any pecuniary or non-pecuniary losses that the complainant can prove. Complainant shall cooperate in the agency's efforts to compute the amount of compensatory damages, and shall provide all relevant information requested by the agency. The Agency shall issue a final decision on the issue of compensatory damages. 29 C.F.R. § 1614.110. The Agency is put on notice that any unjustifiable delay in issuing this decision will add interest to any amount the Commission finds Complainant is entitled to in compensatory damages; 4. The Agency shall submit to the Compliance Officer evidence that it has in place a procedure whereby all of the documents that make up the entire complaint file are in fact delivered to the Commission in a timely manner on appeal. The evidence shall describe the procedure and the mechanism by which the Agency insures that the procedure is followed by the Agency, including a description of penalties that the Agency will impose for failure to comply with the mandatory procedure; and 5. 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 of the agency's calculation of back pay and other benefits due complainant and evidence that all corrective action has been implemented. POSTING ORDER (GO914) The Agency is ordered to post at the FRA (Headquarters and Regional Offices) and the Department of Transportation Office of Civil Rights Headquarters, located in Washington DC, 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. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: Carlton M. Hadden Director Office of Federal Operations Footnotes 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 This termination was ultimately deemed unlawful by a federal district court. 3 During the remanded hearing process, the Agency was not permitted to use affidavits or exhibits contained in the Report of Investigation to support either a motion to dismiss or a motion for summary judgment. Moreover, during the adjudication of the formal complaint, the Agency was not permitted to rely upon affidavits contained in the Report of Investigation in lieu of witnesses who were unavailable to either testify at the hearing or provide testimony by other means authorized by the AJ. 4 Although the record contained approximately 13,000 pages of documents from the investigative file, the Agency had not submitted the Report of Investigation (ROI), hearing transcripts, or any pre-hearing motions and orders.