Michael R. Shine v. United States Postal Service 01972201 December 21, 1998 Michael R. Shine, ) Appellant, ) ) v. ) ) Appeal No. 01972201 William H. Henderson, ) Agency No. 4D-1797-93 Postmaster General, ) Hearing No. 120-94-5516X United States Postal Service ) (Allegheny/Mid-Atlantic), ) Agency. ) ) DECISION Appellant filed a timely appeal with this Commission challenging the final decision of the United States Postal Service (agency) on attorney fees concerning his complaint of discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq.; and §501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §791 et seq. The Commission accepts this appeal in accordance with EEOC Order No. 960.001. The record reveals that after a hearing with an EEOC Administrative Judge, the AJ issued a recommended decision of discrimination dated October 8, 1996, concluding that the agency did not discriminate against appellant on the basis of his disability when: (1) appellant's supervisor allegedly informed appellant's wife and co-workers that appellant had abandoned his position as Postmaster and revealed information concerning his health; (2) appellant's supervisor allegedly made false and misleading statements about him to the Office of Workers' Compensation. The AJ also concluded that the agency did not discriminate against appellant on the bases of his race (Caucasian), sex (male), or in reprisal for his prior participation in EEO protected activity when the District Manager failed to provide him with information, including information requested under the Freedom of Information Act. Notwithstanding her findings noted above, the AJ determined that appellant was entitled to an award of attorney's fees as sanctions imposed against the agency for its failure to comply with the AJ's order issued on August 25, 1994, compelling the agency to comply with appellant's discovery request by September 16, 1994. Subsequently, the agency issued a final agency decision (FAD) dated December 16, 1996, adopting the AJ's recommended findings of no discrimination but rejecting the AJ's imposition of attorney's fees as sanctions. In its FAD the agency contends that the AJ "mis-characterized" appellant's attorney's letter dated June 24, 1994, as a motion to compel and it concluded that the letter was merely a request for authorization to commence discovery. At a pre-hearing conference held on August 25, 1994, the AJ ordered the agency to fully respond to appellant's discovery request by September 16, 1994. The agency asserts that it complied to the AJ's order by submitting responses to the discovery requests on this date. In its response(to appellant's motion for sanctions for failure to comply with the discovery request)the agency raised objections to certain requests and duly noted the basis for each objection. Therefore, it is the agency's position that it fully responded to appellant's discovery requests and that such responses were appropriate under the facts of this case. According to the recommended decision, the AJ, in a prehearing conference memorandum dated August 25, 1994, ordered the agency to fully respond to appellant's discovery requests by September 16, 1994. On September 21, 1994, appellant filed a Motion to Impose Sanctions because of the agency's failure to provide the information requested by appellant in discovery as ordered. On October 6, 1994, the AJ ruled that the agency would not be able to introduce any documents or evidence that had been requested by appellant in discovery and not provided by the agency. Thereafter, on October 12, 1994, the agency submitted an untimely response to appellant's Motion to Impose Sanctions. The AJ noted that on November 1, 1994, the agency belatedly objected to some of appellant's discovery requests. She further acknowledged that some of the objections may have been valid but were never raised until after appellant's Motion to Compel had been granted. The Commission first notes that appellant does not contest the FAD's adoption of the AJ's findings of no discrimination on the issues filed in his initial formal complaints alleging discrimination. Therefore, the sole issue on appeal is the issue of attorney fees as a sanction for the agency's failure to comply with appellant's discovery request. 29 C.F.R. §1614.109(d)(3) provides that when the complainant, or agency fail without good cause shown to respond fully and in a timely fashion to requests for discovery, the administrative judge may, in appropriate circumstances: (1) draw an adverse inference, or (2) take such other actions as appropriate. The Commission has found that pursuant to the regulation cited above, an Administrative Judge has the authority to impose appropriate sanctions such as attorney's fees on parties who fail to comply with discovery orders. See Stull v. Department of Justice, EEOC Appeal No. 01941582 (June 15, 1995). Based on our review of the record evidence, we find that award of attorney's fees is appropriate in this case in light of the agency's consistent failure to cooperate with appellant's discovery requests until the AJ issued her order compelling the agency to comply with discovery. We further find that the agency's objections in response to appellant's discovery requests were untimely and properly overruled by the AJ. Furthermore, we find that the fact that the AJ may have mis-characterized appellant's June 24, 1994, correspondence as a motion to compel is immaterial in light of the fact that the agency was placed on notice that the AJ was construing the correspondence as such during the August 25, 1994, prehearing. Thus, we find that the agency was aware of appellant's motion to compel discovery but failed to pose any objections at that time. In accordance with our decision, we further find it appropriate that the attorney's fees sanction include those fees incurred in connection with appellant's attempt to have an adverse inference drawn despite the fact that appellant ultimately did not prevail on this issue. See Stull v. Department of Justice, EEOC Appeal No. 01941582 (June 15, 1995). The Commission notes that appellant is also entitled to reasonable attorney's fees incurred in connection with the instant appeal, but only to the extent that such fees pertain to the scope of attorney's fees awarded as a sanction. See Smith v. Dept. of Transportation, EEOC Appeal No. 01940320 (February 24, 1994); and Work v. USPS, EEOC Appeal No. 019202029 (May 8, 1992). Based upon a thorough review of the record, and for the foregoing reasons, it is the decision of the Equal Employment Opportunity Commission to MODIFY the final agency decision to reflect the appropriate attorney's fees sanction, and as modified, to AFFIRM agency finding that appellant did not prove discrimination as alleged. ORDER The agency is ordered to take the following action: The agency shall pay appellant's attorney's fees incurred in connection with the agency's failure to comply with discovery, pursuant to an order of the AJ. Such fees shall be payable for time spent on conference calls, motions, letters, requests for adverse inferences, or any other matters related to the documents requested, and for time spent on the instant appeal to the extent that such fees pertain to the scope of attorney's fees awarded as a sanction. The attorney shall submit a verified statement of fees to the agency withing thirty (30) calendar days of the date on which this decision is received. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. §1614.501. (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 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 (S0993) 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. 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. 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: Dec 21, 1998 ______________ Date Ronnie Blumenthal, Director Office of Federal Operations