Frederick Cornell v. Department of Veterans Affairs 01974476 November 24, 1998 Frederick Cornell, ) Appellant, ) ) Appeal No. 01974476 v. ) Agency No. 96-1057 ) Hearing No. 160-97-8202X<1> Togo D. West, Jr., ) Secretary, ) Department of Veterans Affairs, ) Agency. ) ) DECISION Appellant timely initiated an appeal from a final agency decision (FAD) concerning his equal employment opportunity (EEO) complaint of unlawful employment discrimination on the basis of physical disability (Multiple Sclerosis), in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791, et seq. Appellant alleges he was discriminated against when: (1) he did not receive an upgrade to a Wage Grade Three Food Service Worker until July of 1995, when his co-workers were upgraded between December 25, 1994, and March 1, 1995; (2) he did not receive an upgrade to Wage Grade Four Cook between December 25, 1994 and March 1, 1995; (3) he did not receive a monetary award while other Food Service Workers and Cooks received upgrades and awards during the period December 25, 1994, through April of 1995; (4) he was counseled on September 7, 1995, for being absent without leave on May 10, 1995, and June 28, 1995; and (5) he was placed on medical certification status on September 7, 1995, and required to bring in a doctor's note within five days of each day he was off sick from work. The appeal is accepted in accordance with EEOC Order No. 960.001. For the following reasons, the agency's decision is REVERSED and REMANDED. The record reveals that during the relevant time, appellant was employed as a WG-051140-03 Food Service Worker at the agency's Medical Center in Northampton, Massachusetts. Following the above-referenced incidents, and believing he was a victim of discrimination, appellant sought EEO counseling and, subsequently, filed a formal EEO complaint on December 5, 1996. Between December of 1995 and August of 1996, appellant and the agency engaged in a series of correspondence in an attempt to clarify the allegations in appellant's complaint. However, as of August, 1996, appellant's complaint had neither been accepted, rejected nor investigated by the agency. Consequently, pursuant to 29 C.F.R. § 1614.108(f), appellant requested a hearing before an EEOC Administrative Judge (AJ). Upon receipt of the complaint file, the AJ issued a discovery ORDER, dated October 9, 1996, which required the agency: (1) to inform appellant what issues were accepted and/or rejected no later than October 25, 1996; and (2) to develop a complete and impartial factual record, pursuant to 29 C.F.R. § 1614.108(b), and provide a copy of such record to appellant and the AJ no later than December 27, 1996. The AJ noted that failure to comply with the ORDER may result in an adverse inference, i.e., sanctions, against the agency. On October 17, 1996, the agency issued a letter of partial acceptance and partial rejection, accepting for investigation the five issues as set forth herein, and rejecting a sixth issue raised in the complaint concerning an alleged inequitable rotation of duties. Appellant did not appeal the rejection of the sixth issue. The agency, however, failed to complete an investigation and develop a factual record by December 27, 1996. The agency's investigator informed the agency that due to the "holiday season," the investigation would not be completed until mid-January, 1997. The agency notified appellant of this delay, and appellant responded in a letter dated December 17, 1996, that such a delay would violate the AJ's ORDER, and that he would not acquiesce in any further delay of the investigation of his complaint. The investigator, apparently unaware of the ORDER, asked the agency how to proceed given the existence of the ORDER. The agency told the investigator to proceed with the revised timetable, and neither the agency nor the investigator informed the AJ of any planned delay in completing the investigation. The agency completed the investigation and submitted the investigative file to the AJ on January 27, 1996. That day, appellant filed a motion for sanctions, and the agency filed a motion in opposition of appellant's motion for sanctions on January 30, 1996. In its motion opposing sanctions, the agency argued, among other things, that a one-month delay in completing its investigation did not warrant sanctions where appellant did not respond to a letter it had sent informing him of the delay in completing the investigation, and further, that appellant's refusal to cooperate with the investigator resulted in the completion of the investigative report without any testimonial or documentary evidence from appellant. Finally, the agency argued that because it granted appellant an extension during the first quarter of 1996, to provide additional information to assist the agency in processing his complaint, the agency, under principles of equity, should be permitted a one-month extension to complete its investigation. On February 18, 1996, the AJ issued a Recommended Decision (RD) fully in favor of appellant, pursuant to 29 C.F.R. § 1614.109(d)(3)(iv), respecting all the issues in appellant's EEO complaint. First, the AJ found that the agency had failed to develop a complete factual record within 180 days of the day the complaint was filed, as required by the Commission's Regulations at 29 C.F.R. § 1614.108(e). The AJ also found "incredible" the agency's argument that appellant did not respond to its notice of a delay in the investigation, when the record clearly demonstrated that counsel for appellant sent the agency a letter, dated December 17, 1995, indicating that appellant "neither assents to nor acquiesces in an extension for the completion of the investigation." The AJ further found that the agency failed to notify her of the delay in completing the investigation, and "sua sponte, established its own deadline,..." in contravention of the AJ's ORDER. The AJ noted that any alleged non-cooperation by appellant was insufficient to justify its delay in completing the investigation in a timely manner, and further, that the agency therefore failed to show good cause, as required by 29 C.F.R. § 1614.109(d)(3), for its untimely submission of the investigative report. The AJ also noted that the agency's submission of the investigative file was not merely one month late, but over one year late, and was only submitted after being so ORDERED by the AJ. Accordingly, the AJ rejected the agency's equity argument. The AJ ORDERED full remedial relief for appellant. In its FAD, the agency rejected the AJ's imposition of a finding of discrimination. The agency concluded that the AJ did not have the authority to issue the sanction that she did because such authority is limited to discovery matters, and the completion of an investigative report is a "ministerial" function, which is outside the scope of discovery. The FAD found that adverse inferences are typically drawn when an agency fails to provide a witness or a document in its control, and in this case, there was no "discovery order" for any documents in the agency's control. The FAD noted that under 29 C.F.R. § 1614.109(d)(3), an AJ may draw an adverse inference that the requested evidence would have reflected unfavorably on the party failing to comply with the request. The FAD argued that the facts here were similar to those in Terrell v. Health and Human Services, EEOC Petition No. 04950018 (November 7, 1996), wherein the Commission denied a petition for enforcement, despite the agency's untimely completion of a supplemental investigation, where even though untimely, the supplemental investigation was completed. The FAD opined that like Terrell, the agency did complete the investigation, albeit untimely, and that an adverse inference was therefore improper. The FAD also noted that the delay in completing the investigation was attributable to "administrative oversight" and that while it was debatable whether such an explanation established "good cause shown," it did not demonstrate "bad faith" by the agency. Finally, the FAD argued that the AJ failed to demonstrate how appellant was "substantially prejudiced" by a one-month delay in the completion of the investigation, and accordingly, denied the relief imposed by the AJ.<2> On appeal, appellant essentially contends that the AJ properly applied the Commission's rule on sanctions in this case, and her RD should therefore be reinstated. The agency stands on the record and requests that the Commission affirm its FAD. After a careful review of the record, the Commission finds that the AJ's RD summarized the relevant facts and referenced the appropriate regulations, policies, and laws. In reaching this conclusion, we note that EEOC Regulations provide AJ's with broad discretion in the conduct of a hearing, including such matters as discovery orders and the drawing of adverse inferences and other sanctions. See e.g., Ortega v. United States Postal Service, EEOC Appeal No. 01956818 (February 5, 1998); Malley v. Department of the Navy, EEOC Appeal No. 01951503 (May 22, 1997).<3> Contrary to the FAD's conclusion, the agency not only failed to comply with the Commission's Regulations at 29 C.F.R. § 1614.108(e), but also failed to comply with a discovery ORDER to complete an investigation of appellant's complaint allegations in a timely manner. Also contrary to the FAD's conclusion, an AJ may, pursuant to 29 C.F.R. § 1614.109(d)(3)(iv), "[i]ssue a decision fully or partially in favor of the opposing party;..." The facts in Terrell, supra are distinguishable because the issues in Terrell involved a Petition for Enforcement, which the Commission determined was not required when, albeit untimely, the agency did complete that which it was ordered to do. Issuing a Petition for Enforcement was, therefore, unnecessary in Terrell. Here, however, EEOC Regulations at 29 C.F.R. § 1614.109 and the EEOC Management Directive (MD-110) at page 6-7, both provide that absent good cause shown, an AJ has the broad discretion to issue sanctions as stated above.<4> Furthermore, and contrary to the FAD, no showing that appellant was "substantially prejudiced" or that the agency exhibited "bad faith" is required under the language of the EEOC Regulations at 29 C.F.R. § 1614.109, as a prerequisite to the imposition of sanctions, though such a showing may be a factor an AJ considers when determining the appropriateness of sanctions under the above-referenced Regulations.<5> After an independent review of the evidence, the Commission finds that the AJ did not abuse her discretion in issuing a decision favorable to appellant as a sanction against the agency for its dilatory investigation and discovery practices. Therefore, after a careful review of the record, including arguments and evidence not specifically discussed in this decision, the Commission REVERSES the FAD and REMANDS the matter to the agency to take remedial actions in accordance with this decision and the Order below. ORDER (D1092) The agency is ORDERED to take the following remedial action: 1. The agency shall retroactively correct applicable paperwork in appellant's official personnel file to reflect a promotion to the Wage Grade three Food Service Worker, effective March 29, 1995, and any subsequent promotion to a Wage Grade four Cook position occurring as a result of a position reclassification of the Wage Grade Three Food Service Worker position.<6> The agency shall provide appellant with back pay, and all other benefits due him, including applicable cost of living increases, within grade increases and applicable adjustments to retirement, pension or disability benefits. The agency shall determine the appropriate amount of back pay (with interest, if applicable) and other benefits due appellant, pursuant to 29 C.F.R. § 1614.501, no later than sixty (60) calendar days after the date this decision becomes final. The appellant 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 the appellant for the undisputed amount within sixty (60) calendar days of the date the agency determines the amount it believes to be due. The appellant may petition for enforcement or clarification of the amount in dispute. The petition for clarification or enforcement must be filed with the Compliance Officer, at the address referenced in the statement entitled "Implementation of the Commission's Decision." 2. The agency shall provide appellant any monetary award (including applicable interest) he was eligible for, and did not receive, during the period December 25, 1994, through April of 1995. 3. The agency shall expunge and destroy, from appellant's official personnel file, any written records of verbal or written counseling occurring on September 7, 1995, concerning absences without leave occurring on May 10, 1995, and June 10, 1995. The agency shall also reimburse appellant (including applicable interest) for any leave charged as AWOL on May 10, 1995, and June 28, 1995. 4. The agency shall expunge and destroy, from appellant's official personnel and medical file, any written records concerning a September 7, 1995, medical certification requirement. 5. The agency is directed to conduct a minimum of sixteen (16) hours of training for applicable supervisory, management, and EEO personnel, as specifically listed in the AJ's RD at page 9, paragraph 5, concerning these employees' responsibilities with respect to eliminating disability, and all other forms of discrimination in the workplace, as well as the proper procedures for the investigation and resolution of EEO complaints under the Commission's Regulations at part 1614. 6. The agency shall conduct a supplemental investigation on the issue of appellant's entitlement to compensatory damages and shall afford appellant an opportunity to establish a causal relationship between the incident of discrimination and any pecuniary or non-pecuniary losses. See Carle v. Department of the Navy, EEOC Appeal No 01922369 (January 5, 1993).<7> The appellant 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 supplemental investigation and issuance of the final decision shall be completed within one hundred and twenty (120) calendar days of the date this decision becomes final. A copy of the final decision must be submitted to the Compliance Officer, as referenced below; 7. 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 appellant, including evidence that the corrective action has been implemented. POSTING ORDER (G1092) The agency is ORDERED to post at its Northampton, Massachusetts medical facility, copies of the attached notice. Copies of the notice, after being signed by the agency's duly authorized representative, shall be posted by the agency within thirty (30) calendar days of the date this decision becomes final, and shall remain posted for sixty (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 ten (10) calendar days of the expiration of the posting period. 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. ATTORNEY'S FEES (H1092) If appellant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), he/she is entitled to an award of reasonable attorney's fees incurred in the processing of the complaint. 29 C.F.R. § 1614.501(e). The award of attorney's fees shall be paid by the agency. The attorney shall submit a verified statement of fees to the agency -- not to the Equal Employment Opportunity Commission, Office of Federal Operations -- within thirty (30) calendar days of this decision becoming final. The agency shall then process the claim for attorney's fees in accordance with 29 C.F.R. § 1614.501. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0795) The Commission may, in its discretion, reconsider the decision in the 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 the 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: Nov 24, 1998 DATE Ronnie Blumenthal, Director Office of Federal Operations NOTICE TO EMPLOYEES POSTED BY ORDER OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION An Agency of the United States Government This Notice is posted pursuant to an Order by the United States Equal Employment Opportunity Commission dated __________ which found that a violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791, et seq. has occurred at the Northampton, Massachusetts medical facility (hereinafter "facility"). Federal law requires that there be no discrimination against any employee or applicant for employment because of the person's RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL DISABILITY with respect to hiring, firing, promotion, compensation, or other terms, conditions or privileges of employment. The facility supports and will comply with such Federal law and will not take action against individuals because they have exercised their rights under law. The facility was found to have unlawfully discriminated against the individual affected by the Commission's findings on the basis of physical disability. The facility shall therefore remedy the discrimination by retroactively promoting the affected individual, providing the monetary award due him, providing back pay from the effective date of the promotions, and providing proven compensatory damages and other benefits. The facility will remove applicable counseling memos for absences without leave or requests for medical certification, and reimburse him for applicable leave taken as a result of the discrimination. The facility shall also provide training to relevant officials on equal employment opportunity law in the federal workplace. The facility will ensure that officials responsible for personnel decisions and terms and conditions of employment will abide by the requirements of all Federal equal employment opportunity laws. The facility will not in any manner restrain, interfere, coerce, or retaliate against any individual who exercises his or her right to oppose practices made unlawful by, or who participates in proceedings pursuant to, Federal equal employment opportunity law. Date Posted: Posting Expires: 29 C.F.R. Part 1614 1 The Commission notes this complaint was previously assigned, and some documents refer to, Agency No. 96-2107 and EEOC No. 160-96-8686X. 2 We note that the FAD reached its conclusion without conducting any analysis or issuing any finding on the merits of appellant's allegations. We need not address the agency's failure to address the merits of appellant's complaint because the Commission's decision herein will reinstate the AJ's RD in whole. 3 In Ortega v. United States Postal Service, EEOC Appeal No. 01956818 (February 5, 1998), we affirmed the AJ's decision to draw an adverse inference under 29 C.F.R. § 1614.109(d)(3)(iv) after the AJ concluded that the agency failed to show good cause for its dilatory discovery practices. However, in Ortega, we remanded the case for a hearing rather than issue a finding of discrimination under 29 C.F.R. § 1614.109(d)(3)(iv). Ortega can be distinguished from the instant case because the AJ in Ortega wanted to, but believed he was unable to, impose attorney's fees as a sanction. The Commission opined that had the AJ been aware of the Commission's decision in Stull v. Department of Justice, EEOC Appeal No. 01941582 (June 15, 1995)(permitting attorney's fees as a sanction even if appellant is unsuccessful on the ultimate issue of discrimination), the AJ, instead of drawing an adverse inference and finding discrimination in order to award attorney's fees, would have imposed attorney's fees outright. It was on this basis that the Commission remanded the complaint in Ortega for a hearing. In the instant case, there is no showing that the AJ wished to impose any other sanction than that which she imposed. 4 The Commission recognizes that in some of its previous decisions, it has stated that: "[w]here the Commission has before it a sufficiently complete record upon which to make a full evaluation of appellant's complaint,... application of an adverse inference is inappropriate. See, e.g., Johnson v. United States Postal Service, EEOC Request No. 05931133 (July 27, 1995); Durrette v. Veterans Administration, EEOC Request No. 05910353 (July 29, 1991). We note, however, that the rationale in the above referenced cases was applied to situations involving a failure to produce evidence. The facts herein, however, are distinguishable because in this case, the AJ exercised her discretion, as set forth in 29 C.F.R. § 1614.109(d)(3)(iv), to issue a decision fully in favor of [appellant] as a sanction against the agency for its earlier dilatory investigatory practices and blatant disregard of her subsequent discovery order. 5 The Commission notes that the term "bad faith" is derived from its previous Regulations at 29 C.F.R. § 1613.218(e), and this term no longer appears in the applicable section at 29 C.F.R. § 1614.109(d)(3). 6 We note that the record reflects that appellant has elected disability retirement, and actual placement in these positions is therefore not required as a remedy. 7 In Jackson v. United States Postal Service, EEOC Appeal No. 01923399 (November 12, 1992); request for reconsideration denied, EEOC Request No. 05930306 (February 1, 1993), the Commission held that Congress afforded it the authority to award such damages in the administrative process. It based this assessment, inter alia, on a review of the statutory provisions of the Civil Rights Act of 1991 in relation to one another and on principles of statutory interpretation which require statutes to be interpreted as a whole. In particular, the Commission discussed the meaning of the statute's definition of the term "complaining party" and the significance of the reference to the word "action" in Section 102(a). In addition to the specific reasons set forth in Jackson for this holding, Section 2000e-16(b) (Section 717) of the Civil Rights Act of 1964 (42 U.S.C. § 2000(e) et. seq.)(CRA) conveyed to the Commission the broad authority in the administrative process to enforce the nondiscrimination provisions of subsection (a) through "appropriate remedies." Similarly, in Section 3 of the Civil Rights Act of 1991 (CRA of 1991), Congress refers to its first stated purpose as being "to provide appropriate remedies for intentional discrimination and unlawful harassment in the workplace;", thereby reaffirming that authority. Consequently, it is our view that in 1991, Congress clearly intended to expand the scope of the "appropriate remedies" available in the administrative process to federal employees who are victims of discrimination. Moreover, in Section 717(c) of the CRA, the term "final action" is used to refer to administrative decisions by agencies or the Commission, as distinguished from the term "civil action," used to describe the rights of employees after such final action is taken. Therefore, the Commission reaffirms the holding therein. See Cobey Turner v. Department of the Interior, EEOC Appeal Nos. 01956390 and 01960518 (April 27, 1998).