U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alfred S.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency. Appeal No. 0120140900 Hearing No. 460-2012-00060X Agency No. DAL-11-0211-SSA DECISION On December 11, 2013, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's October 31, 2013, final order concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency's final order. ISSUES PRESENTED The issues presented are: (1) whether Complainant's appeal is timely; and (2) whether the Equal Employment Opportunity Commission Administrative Judge (AJ) abused his discretion in dismissing Complainant's complaint as a sanction. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Attorney Advisor at the Agency's Office of Disability Adjudication and Review facility in Houston, Texas. On April 6, 2011, Complainant filed an EEO complaint, which he subsequently amended, alleging that the Agency discriminated against him on the basis of age (60) when: 1. On August 17, 2010, Complainant received notification of his nonselection as an Administrative Law Judge (ALJ) via the Office of Personnel Management's (OPM) ALJ Candidates Register; 2. On July 1, 2011, Complainant received notification of his non-selection as an ALJ via OPM's ALJ Candidates Register; and 3. On August 3, 2011, Complainant received notification of his non-selection as an ALJ via OPM's ALJ Candidates Register. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an AJ. Complainant requested a hearing, and his case was transferred from the Commission's Houston District Office to the Commission's Washington Field Office because the events giving rise to the complaint fell within the jurisdiction of the Washington Field Office. On June 29, 2012, the Washington Field Office AJ issued an Acknowledgement & Order, setting a 70-day discovery period and noting that failure to comply with the AJ's order could result in sanctions, including dismissal of the complaint. The Agency propounded discovery on July 17, 2012, and on August 30, 2012, the Agency filed a Motion to Compel Discovery. On August 19, 2013, the AJ granted the Agency's Motion to Compel Discovery, ordering Complainant to provide complete and full responses to the Agency's discovery requests within 10 days from the date of receipt of the Order and not more than 15 days from the date of the Order. The Order also reminded Complainant of the potential sanctions which could result from failure to comply with the AJ's orders. On September 5, 2013, Complainant had not responded to the Agency's discovery requests, and the Agency filed a Motion for Sanctions. On September 6, 2013, Complainant served the Agency with his responses to the Agency's Requests for Admission, and on September 9, 2013, Complainant served the Agency with his responses to the Agency's Interrogatories. Complainant opposed the Agency's Motion for Sanctions on September 11, 2013. In his opposition to the Agency's Motion for Sanctions, Complainant also objected to the scope of the Agency's Requests for Production, noting that he had few responsive documents, in part because he had deleted relevant emails: "Complainant has not retained his e-mails, but deleted his sent ones pretty often, as they accumulated, and has rather few received ones, mostly concerning the investigation of the complaint which preceded this action." On September 16, 2013, the Agency submitted a reply, which "adds 'destruction of evidence' as an additional basis for its Motion and asserts that dismissal is the only appropriate sanction that will deter similar conduct in the future and equitably remedy the Agency." On September 18, 2013, the AJ granted the Agency's Motion for Sanctions and dismissed Complainant's complaint. In the decision, the AJ noted that Complainant had more than a year to properly respond to the Agency's discovery requests but had failed to do so and also noted that on December 21, 2011, he had previously dismissed Complainant's hearing request as a sanction in a prior EEO case for the same misconduct. On October 31, 2013, the Agency issued a final order fully implementing the AJ's decision. By Notice of Appeal postmarked December 11, 2013, Complainant filed an appeal with this Commission from the October 31, 2013, final order. CONTENTIONS ON APPEAL On appeal, Complainant contends that the Agency mailed its final order to his old address and that he notified the Agency's legal representative and the AJ that his address changed during the hearing process from his address of record in Ft. Worth, Texas to an address in Houston, Texas. Complainant also contends that he was prejudiced by the transfer to the Washington Field Office. According to Complainant, the AJ's dismissal of his complaint was unreasonable because he had significantly complied with the AJ's order compelling discovery. Complainant maintains that he did not respond to the Agency's Request for Production of Documents because of the volume of documents requested and because all of the responsive documents had already been produced or were already available to the Agency. Moreover, Complainant contends that the Agency has not shown that it was prejudiced by his failure to comply with the discovery order. In response to Complainant's appeal, the Agency contends that Complainant's conduct warranted the strictest sanctions possible because he blatantly disregarded the AJ's orders and admitted that he had been destroying emails that were responsive to the Agency's discovery requests. The Agency also maintains that it was prejudiced by Complainant's failure to respond to its discovery requests by unnecessarily delaying resolution of the matter and forcing the Agency to repeatedly cancel its scheduled depositions. ANALYSIS AND FINDINGS As a preliminary matter, we note that the case was properly transferred to the Washington Field Office. The Commission allows transfers of cases from one hearing jurisdiction to another jurisdiction in order to facilitate processing, and Complainant has not established that any harm occurred because the appeal was processed in the Washington Field Office. See Shahin v. Dep't of the Treasury, EEOC Appeal No. 0120102159 (Sep. 21, 2010). The Commission next addresses whether Complainant's appeal was timely filed. A copy of the UPS delivery confirmation reveals that the final order was signed for at Complainant's address of record in Ft. Worth, Texas on November 8, 2013. A review of the record reveals that the Agency properly advised Complainant that he had thirty (30) calendar days after receipt of its final decision to file his appeal with the Commission. Therefore, in order to be considered timely, Complainant had to file his appeal no later than December 9, 2013. The record indicates that on April 8, 2011, the Agency's Office of Civil Rights and Equal Opportunity (OCREO) notified Complainant in writing that he had an obligation to keep OCREO informed of his mailing address during the processing of the complaint, and there is no evidence that Complainant notified OCREO of his new Houston address. We have held that a complainant is deemed to have constructively received a document mailed to the last known address where the complainant fails to notify the agency EEO office of the change of address. See Rutland v. Gov't Printing Office, EEOC Appeal No. 01931590 (April 21, 1993). However, because Complainant notified the Agency's legal representative, an Agency official, of his new mailing address, we exercise our discretion and address the merits of Complainant's appeal. An AJ has the authority to impose sanctions on a party that fails to comply, without good cause, with orders or requests. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at 7-10 (Aug. 5, 2015) (citing 29 C.F.R. § 1614.109(f)(3)). However, such sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. Id. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing his discretion to impose a harsher sanction. Id. Dismissal of a complaint by an AJ as a sanction is only appropriate in extreme circumstances, where the complainant has engaged in contumacious conduct, not simple negligence. Id. In Catella v. General Servs. Admin., EEOC Appeal No. 01A05649 (April 18, 2001), we upheld the AJ's dismissal of the complaint as a sanction for contumacious conduct, noting that the complainant was twice provided with notice that she risked dismissal as a sanction, that complainant ignored all communications from the agency and the AJ, and that complainant failed to provide any persuasive arguments or evidence to justify her complete disregard of the administrative process. In Frederick A. v. Dep't of the Navy, EEOC Appeal No. 0120140377 (June 15, 2016), we distinguished the facts from those in Catella, holding that the complainant's failure to provide complete discovery responses did not rise to the level of contumacious conduct and that the appropriate sanction was to remand the complaint to the Agency to issue a final decision on the merits based on the existing record. Here, we find that Complainant has engaged in contumacious conduct. Complainant, who is an attorney, purposefully failed to respond to the Agency's discovery requests for more than a year, significantly delaying the hearing process. Moreover, Complainant had been sanctioned with the dismissal of his hearing request by the same AJ for the same conduct before. Additionally, it cannot be said that the Agency was not prejudiced by Complainant's conduct, as the Agency was forced to cancel its depositions multiple times. Most significantly, as justification for his failure to respond to the Agency's Request for Production, Complainant admitted to destroying relevant evidence by deleting emails. Not only does this explanation not justify Complainant's failure to respond to the Agency's discovery requests, this explanation demonstrates a blatant disregard for the EEO process and amounts to contumacious conduct. Accordingly, we find no abuse of discretion by the AJ in dismissing the complaint based on Complainant's contumacious conduct. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final order because the AJ did not abuse his discretion in dismissing Complainant's complaint as a sanction. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (S0610) 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. 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. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations 1-6-2017 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 01-2014-0900