Complainant, v. Robert McDonald, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0720150005 Hearing No. 443-2013-00004x Agency No. 200J-0695-2012102030 DECISION Simultaneously with its September 17, 2014, final order, which did not implement an Equal Employment Opportunity Commission (EEOC or Commission) Administrative Judge's (AJ) decision to sanction Complainant, the Agency filed an appeal. On August 19, 2014, Complainant filed a premature cross-appeal, which was perfected after the Agency issued its final order, challenging the AJ's sanction decision. Both appeals ultimately stem from Complainant's complaint of unlawful 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the parties appeals pursuant to 29 C.F.R. § 1614.405(a). BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Medical Instrument Technologist (Diagnostic Ultrasound) at the Agency's Clements Zablocki Veterans Affairs Medical Center (VAMC) in Milwaukee, Wisconsin. On April 5, 2012, Complainant filed a formal complaint alleging that she was discriminated against based on her race (Black), sex (female), and disability when she was terminated in March 2012. Following an investigation, Complainant requested a hearing before an EEOC AJ. In his August 2014 sanction decision, the AJ recounted that the parties requested several continuances in an attempt to settle the complaint, and at their request in July 2013, he went through a great effort to secure a mediator for them. However, on September 4, 2013, a day before the mediation was scheduled, Complainant withdrew from the mediation. The hearing was ultimately scheduled for April 1, 2014. Via her attorney, on March 28, 2014, Complainant offered to settle her complaint for $75,000 and a job at the same rate of pay she was making as an ultrasound technologist. This offer was communicated in a brief mobile telephone text to the Agency. By email the same day, the Agency accepted the offer. Details were not worked out, such as which position and date of reinstatement. In his sanction decision, the AJ recounted that on March 31, 2014, the day before the scheduled hearing, Complainant withdrew her offer, and he had to cancel the hearing because the parties were not prepared to proceed -- the Agency believed all weekend that the matter was settled. Complainant accused her attorney of making a settlement offer to which she did not consent, and the attorney withdrew from representing Complainant on April 2, 2014. By May 2014, Complainant filed a grievance with the Supreme Court of Wisconsin, Office of Lawyer Regulation, against her former attorney. On July 10, 2014, Complainant designated a new representative. On July 24, 2014, the AJ issued Complainant an Order to Show Cause why sanctions should not be imposed for her delay and obstruction of the hearing process. The AJ recounted the lengthy starts and stops of the settlement process, including Complainant canceling mediation the day before it was scheduled to occur and withdrawing her settlement offer the day before the hearing, too late for the hearing to go forward. In response, Complainant, via her representative, explained that her former attorney made a settlement offer on terms to which she did not consent. In sanctioning Complainant, the AJ found that Complainant's conduct - canceling mediation the day before it was scheduled to occur and withdrawing her settlement offer the day before the hearing, too late for the hearing to go forward, caused a significant delay in the hearings process. The AJ found that sanctions were warranted to address the delay and protect the integrity of the hearings process. The AJ noted that he was not finding that the parties had a binding and enforceable contract. He cited Commission cases for the principle that an oral settlement agreement is valid only when entered into in the presence of an AJ and memorialized by a court reporter. As sanction, however, the AJ ordered the enforcement of the settlement agreement. He found this to be a better alternative than canceling the hearing and ordering the Agency to issue a final decision on the merits. In its final order, the Agency declined to implement the AJ's sanction. It argues on appeal that because Complainant's conduct was less than contumacious, the dismissal sanction was unduly harsh and should be reduced to cancellation of the hearing with a remand to the Agency for a final decision. On appeal Complainant indicates she disagrees with the AJ's decision. ANALYSIS AND FINDINGS An EEOC AJ has the authority to sanction a party for failure to comply fully with an order without good cause shown. 29 C.F.R. § 1614.109(e) & (f)(3). Where a complainant has engaged in contumacious conduct, an AJ may appropriately sanction the complainant by dismissing the complaint. Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). Where a complainant has failed to comply with an AJ's order through simple negligence, and not contumacious conduct, a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, such as remanding the complaint to the Agency for a final decision. Id.; Bearden v. U.S. Postal Serv., EEOC Appeal No. 0120065258 (May 29, 2008) (affirming dismissal of the hearing request and remanding the case to the Agency for final agency decision where Complainant repeatedly failed to respond to discovery requests or comply with the AJ's orders). The Commission considers settlement negotiations, including any statements and proposals made therein, to be confidential and privileged in order to facilitate a candid interchange to settle disputes informally. To allow a Complainant to base a new complaint on a settlement offer would defeat this purpose. Chaklos v. Dep't of the Army, EEOC Request No. 05971031 (Nov. 2, 199). Likewise, an agency's decision not to engage in alternative dispute resolution (ADR) cannot be made the subject of an EEO complaint. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Ch. 3(II)(A)(4), at 3-3 (Nov. 9, 1999). The above generally supports the proposition that settlement negotiations or lack thereof, in and of themselves, should not give rise to a separate action. EEOC Regulation 29 C.F.R. § 1614.603 provides that any settlement reached shall be in writing and signed by both parties and shall identify the claims resolved. As neither party argues that they entered into a settlement agreement, we need not further address this matter. We agree with the Agency's assessment on appeal that Complainant's conduct did not rise to the level of contumacious conduct. While her conduct was frustrating and resulted in unnecessary delays in the hearing process, we find no sanction is warranted. Her conduct was not contumacious, violated no AJ order, and involved the settlement process, which is generally protected. Absent evidence of bad faith, e.g., Complainant engaged in machinations designed to cancel the hearing, we decline to affirm any sanction against Complainant. Accordingly, both the AJ's and the Agency's decisions are REVERSED. ORDER The Agency shall submit to the Hearings Unit of the appropriate EEOC Field or District Office a request on behalf of Complainant for a hearing on her complaint. The hearing request must include a brief explanation that it is being made pursuant to this decision, and be accompanied with this decision, the complaint file, report of investigation, and hearing record in EEOC Hearing No. 443-2013-00004x. The Agency shall complete the above actions within 30 (thirty) days after this decision becomes final. Thereafter, an AJ 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. A copy of the letter requesting a hearing must be sent to Complainant, her new representative, and the Compliance Officer as referenced below. 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 December 11, 2014 __________________ Date 4 0720150005 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 2 0720150005