CHARLES KRAMER, COMPLAINANT,
v.
JOHN ASHCROFT, ATTORNEY GENERAL, DEPARTMENT OF JUSTICE, (BUREAU OF PRISONS), AGENCY.

Appeal No. 
07A10108
Agency No. P-99-0223
Hearing No. 160-A0-8288X

September 11, 2003

DECISION

On July 30, 2001, an Administrative Judge (AJ) of the U.S. Equal Employment Opportunity Commission ("EEOC" or "the Commission") issued a decision entering a default judgment in favor of complainant, finding that the agency violated Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons we vacate the AJ's default judgment and remand this complaint for a hearing.

The record reveals that complainant, a Food Service Administrator, GS-13, at the agency's Metropolitan Detention Center in Guaynabo, Puerto Rico, filed a formal EEO complaint on May 24, 1999, alleging that the agency discriminated against him on the bases of race (White) and age (D.O.B. April 27, 1948) when he was not sent to a mandatory training course held in Denver, Colorado in March 1999.

On December 22, 1999, the AJ assigned to the instant case issued an Order to the agency to produce a complaint file within fifteen days of the date of receipt of the Order. The case was then reassigned to another AJ in April 2000, however no report of investigation had been supplied by the agency. On April 28, 2000, the new AJ held a telephone conference with the parties, during which agency counsel stated that no investigation had ever been initiated in the instant case. The AJ then issued a written Order requiring the agency to show good cause why it had failed to comply with the December 22, 1999, Order and why a default judgment against it should not be entered.

In response to the April 28, 2000, Order to Show Cause, the agency contended that sanctions were neither warranted nor appropriate as it had in fact complied with the original Order. The agency stated that on February 3, 2000, a complaint file had been produced, although that file did not contain a report of investigation. The agency further argued that the Order stated it was the AJ's intent to supervise the development of the record if there was no report of investigation. The AJ found the agency's arguments to be untenable as he found the December 1999 Order stated that the agency must provide "a copy of the complaint file, including the report of investigation for the above complaint," and that failure to provide the requested materials would allow the AJ to issue sanctions including a default judgment for the complainant. (Notice of Hearing Request and Order Directing Agency to Produce Complaint File, December 22, 1999).

Based upon his finding that the agency had failed to comply with the December 22, 1999, Order, and its failure to complete a report of investigation in the instant complaint, the AJ drew an adverse inference in favor of complainant, thereby entering a default judgment finding discrimination, and found that complainant was entitled to remedial relief. Following this Order of Imposition of Sanction, a partial hearing on damages was held on February 12, 2001. At the conclusion of the hearing, the AJ issued a decision finding that complainant was entitled to non-pecuniary damages in the amount of $5,000. [FN1] In its final order, the agency rejected the AJ's decision and in so doing initiated the instant appeal.

On appeal, the agency asks the Commission to reject the AJ's decision to impose sanctions, and contends that the default judgment was improper as the agency had complied with the December 1999 Order. The agency further argues that it never received notice that it had not complied with the Order until the AJ issued the Order to Show Cause, and that the December 1999 Order contained language which indicated that if no investigation had been initiated, the AJ would serve to supervise the development of the record. The agency contends that it did show good cause as to why a report of investigation did not exist and, therefore, the AJ should not have entered default judgment against it.

Here, as to the issue of sanctions, the Commission's regulations afford broad authority for the conduct of hearings by Administrative Judges. 29 C.F.R. §1614.109 et seq.; Rountree v. Department of Treasury, EEOC Appeal No. 07A00015 (July 13, 2001). Additional guidance can be found in EEO MD-110, 7-9. When a complainant or agency fails to comply with an AJ's order, an AJ may take action against the noncomplying party pursuant to 29 C.F.R. § 1614.109(f)(3), up to and including issuing a decision in favor of the opposing party. Before sanctions are imposed, the Commission requires the AJ to issue an order to the offending party that makes clear that sanctions may be imposed and the type of sanction that could be imposed for failure to comply with an order unless the party can show good cause for that failure. See Rountree, supra. A showing that the noncomplying party acted in bad faith is not required. See Cornell v. Department of Veterans Affairs, EEOC Appeal No. 01974476 (November 24, 1998).

In the matter before us, we find that the Administrative Judge improperly granted default judgment in complainant's favor. In reaching this conclusion, we note that the record does not establish that the agency failed to comply with the December 1999 Order requesting the complaint file. In its appeal brief, the agency argues that while the Order did state that the agency was required to provide a copy of the report of investigation, the Order also addressed what actions should be taken in a circumstance when no investigation had been completed, such as in the instant case. We concur with this reading of the Order. Paragraph four of the Order states:
Complaint files must be forwarded even where there has been no investigation or there is an incomplete investigation. The Administrative Judge will supervise development of the record through the parties' use of discovery and/or through the Administrative Judge's orders for the production of documents and witnesses.

MD-110 Chapter 7 Section III(b). From the language of this paragraph it appears that the agency complied with the Order by providing a copy of the complaint file to the parties. Further, the agency was not alerted to the fact that the AJ considered the complaint file inadequate until the telephonic conference of April 28, 2000, and the AJ never directly ordered the agency to produce a report of investigation. As such, we find that the AJ's issuance of a default judgment in favor of complainant was unwarranted. We, therefore, vacate the AJ's finding of discrimination, and remand this complaint for a hearing in accordance with the Order below.

ORDER

The agency shall submit to the Hearings Unit of the EEOC's New York District Office the request for a hearing within fifteen (15) calendar days of the date this decision becomes final. The AJ will then supervise the development of the record. 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.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 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 (M0701)

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), 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 19848, Washington, D.C. 20036. 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 (R0900)

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 (Z1199)

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:

Carlton M. Hadden
Director
Office of Federal Operations

FN1. We note that the award of non-pecuniary compensatory damages in the instant case is connected to the agency's violation of Title VII. Compensatory damages are unavailable for discrimination claims under the ADEA. 29 U.S.C. § 633(a); Falks v. Department of the Treasury, EEOC Request No. 05960250 (September 5, 1996).