Complainant v. Deborah Lee James, Secretary, Department of the Air Force, Agency. Appeal No. 0120132260 Hearing No. 420-2013-00063X Agency No. 8G0J12002 DECISION Complainant timely filed an appeal from the Agency's 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. The Commission accepts the appeal pursuant to 29 C.F.R. § 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order. ISSUES PRESENTED The issues presented are: (1) whether the AJ properly denied Complainant's motion for a default judgment as a sanction against the Agency for its failure to complete its investigation within 180 days; and (2) whether the AJ properly issued a decision without a hearing, finding no discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Transportation Assistant, GS-6, at the Agency's 14th Logistics Squadron, Mississippi Columbus Air Force Base. According to Complainant, her first-level supervisor (S1) secretly received a promotion from the GS-7 to the GS-9 grade level. Complainant indicated that the position was not advertised, and therefore she should have been allowed to compete for it. However, according to Complainant's second-level supervisor (S2), S1 never received a promotion to the GS-9 grade level. S1 also averred that he had not received a promotion to the GS-9 grade level, and his last promotion was in 2004. The Agency's HR Officer similarly averred that S1 had not received the promotion, and his last promotion was in 2004. However, according to Complainant, her coworker uploaded to a computer database a document from S2, which reportedly related to the promotion of S1. On April 19, 2012, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of sex (female) when: 1. on June 1, 2011, her outstanding performance award for $1,500 was denied and lowered to $480 by S2; 2. on or about March 2009, her Transportation Assistant position description was not updated by S1 to reflect the Defense Personal Property System (DPS), the new Traffic Management Office Personal Property System, which was implemented to the Transportation Operational Personal Property Standard (TOPPS) System to become the VTOPPS1; 3. in or about March 2010 to the present, S1 did not make another Transportation Assistant handle a fair workload, which the she (Complainant) had to pick up; 4. in or about March 2009 to the present she was not compensated for the additional work required for the implementation of the new DPS system and training of personnel by S2, but S1 has been compensated; 5. on or about December 19, 2011, she was not compensated or promoted in the Traffic Management Office by S2, but S1 was; 10. Between March 8, and 15, 2013, S2 and two security officials issued an unprecedented, purportedly security-related, order directing Complainant, another Transportation Assistant, and their colleagues to delete computer files that might tend to identify the grade and/or pay of S1, as a GS-9 or its functional equivalent.2 On July 18, 2012, the Agency issued a letter of Partial Acceptance/Dismissal of Complainant's complaint. Therein, the Agency accepted claim 5 for investigation, but dismissed the remaining claims, with the exception of claim 10, 3 for untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). On December 19, 2012, as 180 days had passed (244 days) since the filing of her formal complaint and an investigation had not been conducted or completed, Complainant requested a hearing before an EEOC Administrative Judge (AJ), pursuant to 29 C.F.R. § 1614.108(g). Thereafter, on January 15, 2013, the AJ assigned to the case, issued an order directing the Agency to produce the Report of Investigation (ROI). The AJ's order provided the Agency with 15 days to produce the requested material, and also put the Agency on notice that sanctions may be imposed for failure to comply, absent good cause shown. As a result, the Agency began its investigation of claim 5 on January 25, 2013, finishing the investigation on February 12, 2013. The Agency thereafter sent Complainant a copy of the ROI on February 21, 2013. Subsequently, on March 17, 2013, Complainant filed a motion before the AJ: 1) for a default judgment against the Agency; 2) to reinstate the claims that were dismissed by the Agency on July 18, 2012; and 3) to amend her complaint to include claim 10. On March 28, 2013, the AJ reinstated all of the dismissed claims and, further, granted Complainant's request to amend her complaint. The AJ, however, denied Complainant's request for a default judgment. Also, on March 28, 2013, the AJ issued a Notice of Intent to issue a Decision without a Hearing, specifically giving Complainant and the Agency 30 days to respond.4 The next day, on March 29, 2013, Complainant submitted an Amended Motion for Default Judgment. Subsequently, 13 days later, the AJ treated Complainant's March 29, 2013, Amended Motion for Default Judgment as her response, and issued a decision without a hearing in favor of the Agency on April 10, 2013. Specifically, the AJ found, with regard to claims 1-9, that Complainant did not demonstrate that she was aggrieved or harmed by the Agency's actions. The AJ further noted that Complainant did not show that she was treated less favorably than a similarly situated individual outside of her protected status under the same or similar circumstances. The AJ noted that Complainant presented S1 as a comparator, but S1, as her supervisor, was not similarly situated to her. The AJ therefore found that Complainant did not establish a prima facie case of sex discrimination with regard to claims 1-9. The AJ lastly dismissed the amended claim 10 for failure to state a claim. On May 17, 2013, the Agency issued its final order, fully implementing the AJ's decision. CONTENTIONS ON APPEAL On appeal, Complainant, through her attorney, asserts that she did not receive the ROI by the 180-day procedural requirement. Complainant also indicates that on January 15, 2013, the AJ ordered the Agency to produce the investigative file by January 30, 2013, but the Agency did not comply. Complainant indicates that she did not receive the ROI until February 21, 2013, 21 days after the AJ's deadline. Complainant also argues that the ROI is insufficient, and requested that the AJ issue sanctions against the Agency. Complainant asserts that the ROI is missing important documentation, including any timesheet, timecard, SF-50, or SF-52, identifying the grade and pay of S1 as of the date she filed her complaint. Complainant also asserts that the ROI is missing the document that her coworker uploaded, which reportedly shows S1's secret promotion. Complainant argues that a default judgment should be issued against the Agency in her favor. Complainant also argues that the AJ erred in finding that she failed to establish a prima facie case of discrimination based on sex. Complainant contends that S1 received his promotion secretly, and therefore she did not have an opportunity to compete for this position. Complainant further contends that S1 also received his previous promotion to become her supervisor secretively, and therefore she had no opportunity to become a supervisor. Complainant states that there are no African-American or female supervisors or managers in her unit. Complainant argues that she established a prima facie case of discrimination based on statistical evidence regarding the absence of female supervisors in the office. Complainant further states that the AJ issued his Notice of Intent on March 28, 2013, giving her 30 days to respond, but that that 13 days later the AJ issued his decision without warning, and therefore she did not have a chance to adequately respond. In response to Complainant's appeal, the Agency argues that its ROI includes S1's SF-50, showing that he is a GS-7, rather than a GS-9, and therefore he has not been promoted. The Agency also argues that, to be eligible for promotion to the next grade-level, a candidate must serve at a grade level of no more than one or two grade-levels lower for at least one year. The Agency argues that Complainant would not have been eligible for promotion because her GS-6 grade-level is three grades lower that the GS-9 grade level. The Agency further argues that Complainant is not similarly situated to S1, indicating that S1 is a supervisor at a different grade level. The Agency also argues that the AJ did not err by failing to grant Complainant's motion for default judgment. The Agency specifically argues that Complainant has not shown that this is such an extreme circumstance that warrants a default judgment as a potential sanction. The Agency also argues that Complainant does not have the right to appeal the AJ's decision on sanctions pursuant to the Commission's regulations. ANALYSIS AND FINDINGS Complainant's Request for Sanctions The Commission's regulations afford broad authority to AJs for the conduct of hearings. See 29 C.F.R. § 1614.109 et seq.; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Ch. 7, Sec. III(D) (Nov. 9, 1999). An AJ has inherent powers to conduct a hearing and to issue appropriate sanctions, including a default judgment. See id.; Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005); Rountree v. Dep't of the Treasury, EEOC Appeal No. 07A00015 (July 13, 2001). Specifically, our regulations provide that where a party fails to respond to an order of an AJ, or requests for the investigative file, for documents, records, comparative data, statistics, affidavits, or the attendance of witnesses, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. § 1614.109(f)(3). An AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the non-complying party; (2) consider the requested information to be established in favor of the opposing party; (3) exclude other evidence offered by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party; or (5) take other action deemed appropriate, e.g., payment of costs and expenses by the non-complying party. 29 C.F.R. § 1614.109(f)(3). Before taking any of the actions authorized by the Commission's regulations, an AJ must first issue a Notice to Show Cause to the non-complying party. EEO-MD-110, Chap. 7, Section III(D), n.6; see DaCosta v. Dep't of Educ, EEOC Appeal No. 01995992 (Feb.25,2000). While we have held that an AJ must first issue Notice to Show Cause to the non-complying party, we have also noted that sanctions could be issued when the non-complying party had an opportunity to submit an opposition to the motion for sanctions prior to issuance of the AJ's sanction order. See Miller v. Dep't of the Navy, EEOC Appeal No. 01A01735 (June 18, 2004) (noting that "we consistently provided the party the opportunity to respond prior to the issuance of sanctions, whether by issuing that party a show cause order . . . or by permitting the party opposing sanctions an opportunity to submit an opposition to the motion for sanctions prior to issuance of the AJ's sanction order." (emphasis added)). In the instant case, Complainant asserted on appeal that the AJ erred in denying her motion to sanction the Agency for its delay in completing the EEO ROI. We agree. Pursuant to 29 C.F.R. § 1614.108(e), agencies must complete an investigation of a formal EEO complaint within 180 days of the filing of the complaint unless the parties agree in writing to extend the period for not more than an additional 90 days. Here, Complainant did not agree to an extension during the regulatory 180-day period; therefore, the Agency was required to complete the investigation of Complainant's complaint on or before October 16, 2012. The record reveals, and the Agency does not dispute, that no investigation was begun, much less completed, within the 180-day period. The Agency did not even assign an investigator to Complainant's complaint until January 25, 2013, 10 days after the AJ ordered the Agency produce the investigative file. There is no dispute that the Agency did not complete the ROI until February 15, 2013. The Agency thereafter finally provided Complainant with a copy of the ROI on February 21, 2013, a total of 308 days after Complainant filed her April 19, 2012, formal complaint. We note that the Agency specifically argues on appeal that Complainant has not shown that this is such an extreme circumstance that it warrants a sanction. However, the Agency has not provided any documentation or explanation for its failure to investigate Complainant's complaint before October 16, 2012. The Agency was well aware of its responsibility to investigate the complaint, but it delayed in doing so. Accordingly, the Commission finds that the Agency failed to conduct a timely investigation of Complainant's complaint as required by 29 C.F.R. § 1614.108(e). Therefore, we find that the AJ should have granted Complainant's Motion for Sanctions for the Agency's failure to follow the Commission's regulations to complete the investigation within 180 days. See Montes-Rodriguez v. Dep't of Agriculture, EEOC Appeal No. 0120080282 (Jan. 12, 2012), req. for recon. den., EEOC Request No. 0520120295 (Dec. 20, 2012) (finding that the agency, which did not initiate the investigation unit after 202 days had elapsed violated EEO regulations, and therefore the AJ should have granted complainant's motion for sanctions); Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sep. 25, 2009) (finding that the Agency's delay in completing the investigation within 180 days was "no small non-compliance matter" and warranted a sanction); Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007) (agency's failure to complete investigation within 180-days and comply with the AJs' orders warranted a sanction). As noted above, the Commission has previously held that, prior to the imposition of sanctions, the party against whom such sanctions are to be imposed is entitled to an opportunity to respond and show cause as to why sanctions should not be imposed or an opportunity to submit an opposition to the motion for sanctions prior to the issuance of an AJ's sanction order. Miller, EEOC Appeal No. 01A01735. Here, we find that the Agency had an opportunity to file a response to Complainant's March 17, 2013, motion for sanctions, which motion the AJ denied. The Agency also had an opportunity to address its delay when Complainant reintroduced her motion for sanctions before the AJ on March 29, 2013, which motion the AJ again denied. We note, however, that the Agency never provided a response to Complainant's motions or any explanation addressing its delay. Determination of the Sanction In general, the Commission has held that sanctions, while corrective, also act to prevent similar misconduct in the future and must be tailored to each situation, applying the least severe sanction necessary to respond to the party's failure to show good cause for its actions, as well as to equitably remedy the opposing party. Rountree, EEOC Appeal No. 07A00015; Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). The Commission has emphasized that the purpose of a sanction is to deter the underlying conduct of the non-complying party. See Barbour v. U.S. Postal Serv., EEOC Appeal No. 07A30133 (June 16, 2005). The factors pertinent to "tailoring" a sanction, or determining whether a sanction is, in fact, warranted, include: (1) the extent and nature of the non-compliance, including 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, if any; and (4) the effect on the integrity of the EEO process. Gray, EEOC Appeal No. 07A50030; Voysest v. Soc. Sec. Admin., EEOC Appeal No. 01A35340 (Jan. 18, 2005). Here, Complainant argues that a default judgment in her favor would be an appropriate remedy in this case. We note, however, that sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. We find that a more narrowly tailored sanction rather than a decision fully in favor of Complainant would be appropriate here. We acknowledge that the Agency did not even begin to investigate Complainant's complaint until January 25, 2013, after 281 days had elapsed from the time she filed her complaint. We note, however, that the Agency, although in an untimely fashion, did complete the investigation and provided Complainant a copy. We also note that Complainant participated in the investigation, and we can find no specific evidence that Complainant was directly harmed by the delay. Further, the limited record before us does not establish that Complainant's claims of discrimination are supported at this juncture. Notwithstanding, we find that the Agency's delay and its failure to comply with the Commission's regulations must not be overlooked here. Under the facts of this case, the AJ could have selected an evidentiary sanction such as not allowing the agency to rely upon affidavits contained in the ROI in lieu of witnesses who are unavailable to testify at a hearing. See Gray, EEOC Appeal No. 07A50030 (citing 29 C.F.R. § 1614.109(f)(3)(iii) and (v)). Such a sanction would effectively emphasize to the agency the need to comply with AJ orders, as well as relevant timeframes during the investigation of EEO complaints. See id. In Gray, we reversed the AJ's decision, which issued a default judgment against the Agency, and instead remanded the case for a hearing as a sanction for the agency's failure to complete its investigation within the 180-day period. In finding that a default judgment was not appropriate, we noted that complainant was not harmed by the delay and she continued to participate in the investigation while the case was pending a hearing. We further noted that there was no evidence available to the AJ to support a finding of discrimination at that stage. We therefore instructed the AJ to instead issue the evidentiary sanction of not allowing the agency to use the affidavits or exhibits contained in the ROI to support its motion for a decision without a hearing. This effectively remanded the case for a hearing as a sanction. We also ordered that the agency could not rely upon affidavits contained in the ROI in lieu of witnesses who were unavailable to either testify at the hearing or provide testimony by other means authorized by the AJ. In the present case, as in Gray, supra, Complainant participated in the investigation, and the limited record before us does not establish that Complainant's claims of discrimination are supported at this juncture. As such, instead of a default judgment, we find that the evidentiary sanction of not allowing the agency to use the affidavits or exhibits contained in the ROI to support either a motion to dismiss or a motion for summary judgment to be more appropriate. Moreover, during the hearing, the Agency may not rely upon affidavits contained in the ROI in lieu of witnesses who are unavailable to either testify at the hearing. We note that the AJ reinstated Complainant's claims, including claim 1 (performance award), which the Agency dismissed in its July 18, 2012, Partial Acceptance/Dismissal. We note further that the Agency only accepted Complainant's promotion claim for investigation, and therefore, when the AJ issued his decision finding no discrimination with respect to the reinstated claims (including claim 1), he did so without an investigative record. As such, the AJ issued his decision without a complete record, especially with regard to claim 1. Therefore, we are unable to determine whether the AJ properly issued a decision without a hearing due to the incomplete record, and find again that remanding this case for a hearing is the most appropriate outcome here. See Complainant v. Dep't of Defense, Appeal No. 0120114192 (Sep. 16, 2014) (unable to determine whether the AJ properly issued a decision without a hearing due to the incomplete record; remanding the case for a hearing on the merits was the most appropriate sanction)(citing Vu v. Social Sec. Admin, EEOC Appeal No. 0120072632 (Jan. 20, 2011); Shehata v. Dep't of Veterans Affairs, EEOC Appeal No. 0120102315 (May 9, 2012)). CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that the AJ erred in denying Complainant's motion for a sanction against the Agency's for its untimely investigation. However, rather than a default judgment, we find that an evidentiary sanction, remanding this case for a hearing, to be more appropriate here. Accordingly, the Commission VACATES the Agency's final order and REMANDS the matter for a hearing in accordance with this decision and the ORDER below. ORDER The Agency is ORDERED to take the following actions: The Agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit of the Birmingham District Office 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. During the remanded hearing process, as a sanction for its failure to comply with the Commission's regulations, the agency shall not be permitted to use the affidavits or exhibits contained in the ROI to support either a motion to dismiss or a motion for summary judgment. Moreover, the Agency may not rely upon affidavits contained in the ROI in lieu of witnesses who are unavailable to either testify at the hearing or provide testimony by other means authorized by the AJ. 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 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 July 17, 2015 Date 1 The definition of the VTOPPS acronym is not apparent from the record. 2 The AJ, Complainant, and Agency, lists all 10 claims as they appear in the record. However, claims 6-9 are duplicative of claims 2-5; therefore, we have omitted them. 3 Claim 10 was an amendment to the complaint added after Complainant submitted her request for hearing, which the AJ granted. 4 The AJ's April 10, 2013, decision erroneously notes that Complainant had only 15 days to respond. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120132260 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0120132260