MARTHA E. WICHY, APPELLANT,
v.
F. WHITTEN PETERS, ACTING SECRETARY, U.S. DEPARTMENT OF THE AIR FORCE, AGENCY.

Appeal No. 01962972
Hearing No. 370-94-X2250
Agency No. YMHL93007

Appellant timely initiated an appeal to the Equal Employment Opportunity Commission (EEOC or Commission) from the final agency decision concerning her equal employment opportunity (EEO) complaint, which alleged discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The appeal is accepted by the Commission in accordance with the provisions of EEOC Order No. 960.001.

Appellant filed a formal complaint alleging discrimination on the bases of race (Hispanic),1 national origin (Puerto Rico), sex (female), and reprisal (prior EEO activity) when she was allegedly harassed because of her attitude, language, and English comprehension from October 1992 until she was separated from employment on May 7, 1993. The agency conducted an investigation, provided appellant with a copy of the investigative report, and advised appellant of her right to request either a hearing before an EEOC administrative judge (AJ) or an immediate final agency decision (FAD). Appellant requested a hearing. On August 12, 1994, a hearing was held in which nine witnesses testified. On November 27, 1995, the AJ issued a Recommended Decision (RD) finding no discrimination, but also recommended that a sanction be imposed upon the agency to pay reasonable attorney's fees and costs for falsifying documents and testimony in contempt of the EEO process. The agency adopted the finding in the RD only in regards to the finding of no discrimination, but rejected the AJ's imposition of sanctions arguing that appellant was not a prevailing party. It is from this decision that appellant now appeals.

The Commission has reviewed the record, consisting of the investigative report and exhibits, the hearing transcript, the hearing exhibits, the RD, the FAD, and the parties' statements on appeal. The Commission concludes that the AJ accurately set forth the facts giving rise to the complaint and the law applicable to the case. The Commission further concludes that the AJ correctly determined that appellant had not established, by a preponderance of the evidence, that the agency discriminated against her as alleged in his complaint. Accordingly, the Commission herein adopts the AJ's recommended findings of facts and conclusions of law in regards to the finding of no discrimination.

In addition, we adopt the AJ's imposition of sanctions against the agency for its abuse of the discovery process. The Commission has previously awarded attorney's fees and costs as a sanction for an agency's bad faith conduct in failing to comply and cooperate in the discovery process forthrightly. See, e.g., Terrell v. Department of Health and Human Services, EEOC Request No, 04950018 (November 7, 1996)(citing Comer v. Federal Deposit Insurance Corporation, EEOC Request No. 05940649 (May 31, 1996); Stull v. Department of Justice, EEOC Appeal No. 01941582 (June 15, 1995). The Commission finds the rationale set forth in those decisions is applicable to the case before us. We also find that the AJ has set forth that rationale in her RD with such clarity that it need not be repeated here, and we find no basis in the record before us to disturb the AJ's determination. Accordingly, in light of the above, the final agency decision is AFFIRMED IN PART and REVERSED IN PART.

ORDER

The agency is ORDERED to take the following remedial action:
1. The agency shall reimburse appellant for attorney's fees and costs incurred with the filing of the complaint. Appellant's attorney shall submit a verified statement of fees to the agency within thirty (30) calendar days of the date this decision becomes final. The agency shall process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501 et seq.

2. 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 the attorney's fees payable.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

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 19848, Washington, D.C. 20036. The agency's report must contain supporting documentation, and the agency must send a copy of all submissions to the appellant. If the agency does not comply with the Commission's order, the appellant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503 (a). The appellant 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. §§ 1614.408, 1614.409, and 1614.503 (g). Alternatively, the appellant 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. §§ 1614.408 and 1614.409. 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) (Supp. V 1993). If the appellant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.410.

STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this case if the appellant or the agency submits a written request containing arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law, regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive a timely request to reconsider filed by another party. Any argument in opposition to the request to reconsider or cross request to reconsider MUST be submitted to the Commission and to the requesting party WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request to reconsider. See 29 C.F.R. § 1614.407. All requests and arguments must bear proof of postmark and be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed filed on the date it is received by the Commission.

Failure to file within the time period will result in dismissal of your request for reconsideration as untimely. If extenuating circumstances have prevented the timely filing of a request for reconsideration, a written statement setting forth the circumstances which caused the delay and 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).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. It is the position of the Commission that 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. You should be aware, however, that courts in some jurisdictions have interpreted the Civil Rights Act of 1991 in a manner suggesting that a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision. To ensure that your civil action is considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR DAYS from the date that you receive this decision or to consult an attorney concerning the applicable time period in the jurisdiction in which your action would be filed. 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 (Z1092)

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 that the Court appoint an attorney to represent you and that the Court 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 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:

Ronnie Blumenthal
Director
Office of Federal Operations

September 25, 1998

1. The EEOC considers the term "Hispanic" to be a designation of national origin, not race. See, e.g., EEOC, Office of Federal Operations, Federal Sector Programs, Annual Report on the Employment of Minorities, Women, and People with Disabilities, Fiscal Year 1990, p. 4.