Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency. Appeal No. 0120130347 Agency No. ARBELVOIR10JUN02626 DECISION Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant's appeal from the Agency's September 28, 2012 final decision concerning an equal employment opportunity (EEO) complaint claiming 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. BACKGROUND During the period at issue, Complainant worked as a physicist at the Agency's Night Vision and Electronic Sensors Directorate in Fort Belvoir, Virginia. On June 29, 2010, Complainant filed a formal EEO complaint claiming that he was subjected to discrimination on the bases of race (Caucasian), disability (attention deficit hyperactivity disorder), age (over 40), and/or reprisal for prior EEO activity when: 1. on April 30, 2010, his supervisor informed him that his performance evaluation was rated low; and 2. on April 5, 2010, management informed him that he would be sharing his office with another employee, which Complainant has not had to do for almost twenty years. After the investigation into his complaint, Complainant was provided with a copy of the report of the investigation and notice of the right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) or a final decision within thirty days of receipt of the correspondence. Complainant requested a hearing. On February 2, 2012, during a prehearing conference, Complainant requested that the AJ consolidate his case with another complaint still under investigation by the Agency involving a denial of his request to telework and other issues. In response, the AJ suggested that the hearing request on the case currently before her could be dismissed, without prejudice, so that it could be refiled and consolidated with the other case when that investigation was completed. However, Complainant wanted to first explore reaching a global settlement on all his claims with the assistance of an EEOC mediator before dismissing his hearing request. The parties and the AJ agreed to this approach. As a result, by Order dated April 3, 2012, the AJ cancelled all deadlines in the case to allow the parties time for settlement negotiations. The Order also provided that either "a jointly signed settlement or agreed [motion for] dismissal [without prejudice] will be received by 4:00 p.m. (CT), May 4, 2012." (Emphasis in original). The parties were not successful in reaching a settlement agreement and did not file a motion for a dismissal without prejudice by the May 4, 2012 deadline. On May 7, 2012, the AJ issued an order to show cause to Complainant to explain why his hearing request should not be dismissed with prejudice since the parties failed to submit a settlement agreement or a joint motion to dismiss the hearing without prejudice by the deadline. Complainant responded that the Agency refused, at the last minute, to agree to the dismissal without prejudice in order to consolidate the case with the other complaint still under investigation. Therefore, Complainant argued that although he was willing to submit the dismissal motion, the Agency was not, and it was, therefore, impossible to comply with the AJ's deadline. On May 25, 2012, the AJ issued an "Order Dismissing Request for Hearing and Returning to Agency for Final Agency Decision," cancelling the hearing request with prejudice and remanding the complaint back to the Agency for a final decision on the merits. In her Order, the AJ acknowledged Complainant's argument that the Agency shared responsibility for the failure to submit the agreed-upon dismissal motion. However, the AJ found that ,"[w]hile that may be, at the time Complainant requested cancellation of processing and a 30-day stay [for mediation], he was aware of the consequences if either a signed settlement agreement or agreed dismissal motion was not received." In compliance with the AJ's hearing dismissal order, the Agency issued the instant final decision, pursuant to 29 C.F.R. 1614.110(b), on September 28, 2012, concluding no discrimination had been proven. The Agency found that management witnesses had articulated legitimate, nondiscriminatory reasons for the disputed actions which Complainant did not prove were a pretext for discrimination. The instant appeal followed. Complainant, on appeal, argued that the AJ erred canceling his hearing request because "the parties failed to reach settlement by a deadline and because the parties failed to agree upon an order for consolidation by a deadline. There is no legal basis to punish Complainant for joint failure by the parties." ANALYSIS AND FINDINGS On appeal, Complainant challenges, as a threshold matter, the AJ's dismissal of his hearing request. EEOC regulations and Commission precedent provide AJs with broad discretion in the conduct of a hearing and related proceedings, including the issuance of sanctions. See 29 C.F.R. § 1614.109; EEO MD-110, at 9-10. In this case, however, we find that the AJ abused that discretion by sanctioning Complainant by dismissing his hearing request with prejudice. 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, an AJ may be abusing his or her discretion to impose a harsher sanction. See 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. In this case, the record is clear that the parties and the AJ mutually agreed that the parties would submit a motion to dismiss the hearing request without prejudice if the parties were unable to reach a settlement agreement by a date certain. The stated and agreed-upon purpose of the dismissal without prejudice was to allow the hearing request to be refiled once the investigation into a related complaint was completed so the two complaints could be consolidated for hearing. However, when no settlement agreement was reached, the parties did not file a joint motion to dismiss without prejudice with the AJ by the designated date (May 4, 2012). On May 7, 2012, the AJ issued an order to show cause to Complainant seeking an explanation for the lack of filing by the May 4 deadline. On May 9, 2012, Complainant responded to the AJ's order to show cause by explaining that after no settlement could be reached, the Agency refused to agree to the dismissal without prejudice and subsequent consolidation of the two complaints. Complainant also submitted a draft dismissal without prejudice order in the format previously provided by AJ. However, on May 25, 2012, the AJ sanctioned Complainant by dismissing the hearing with prejudice. Under these facts, we find that the AJ exceeded her discretion by sanctioning Complainant for failing to submit the dismissal order when the Agency refused to sign it. While Complainant should have notified the AJ of the Agency's refusal by the May 4 deadline, we do not find this omission sufficient to justify dismissal of the hearing altogether. At best, any failure was the joint responsibility of both parties and does not justify the sanction being imposed on only Complainant. There was clearly no prejudice to the Agency by Complainant's actions. Furthermore, we do not find that justice was served or the integrity of the EEO process preserved by the sanction imposed. Accordingly, for the reasons stated above, we will vacate the Agency's decision on the merits of the complaint and remand the matter for a hearing. Unfortunately, due to the passage of time, we assume that the other related complaint has since been processed and is no longer available for consolidation. If that is not the case, consolidation should occur. In addition, we note that Complainant's attempted to amend his complaint to include five issues of alleged unlawful retaliation (removal of Complainant's international duties, denial of administrative support, removal from a staff meeting, memorandum criticizing his report of harassment at a staff meeting, and a reassignment). On February 9, 2012, the AJ denied the requested amendment. We overturn this ruling and, on remand, these amended claims should be included in the issues for hearing. While it appears no investigation has occurred on these issues, the relevant evidence can be developed during the hearing process. CONCLUSION Therefore, after a careful review of the record and the arguments submitted on appeal, the Agency's final decision is VACATED and the matter is REMANDED to the Agency in accordance with this decision and the Order below. ORDER The Agency shall submit to the Hearings Unit of the EEOC's San Antonio Field Office a request for a hearing on Agency No. ARBELVOIR10JUN02626, as well as a copy of this decision, within fifteen (15) calendar days of the date this decision becomes final. If consolidation with the other EEO complaint referenced in this matter is still possible, the Agency should make that request to the Hearings Unit. The Agency is also directed to submit a copy of the complaint file in Agency No. ARBELVOIR10JUN02626 to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. In addition, the Agency should inform the Hearings Unit that the complaint in Agency No. ARBELVOIR10JUN02626 has been amended to include five claims of unlawful retaliation (removal of Complainant's international duties, denial of administrative support, removal from a staff meeting, memorandum criticizing his report of harassment at a staff meeting, and a reassignment), although no investigation has occurred on those issues. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the request and complaint file have been transmitted to the Hearings Unit. Thereafter, the Administrative Judge shall 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 (K1208) 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 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 March 31, 2015 __________________ Date 2 0120130347 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120130347