U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Harriet M.,1 Complainant, v. James N. Mattis, Secretary, Department of Defense (Defense Logistics Agency), Agency. Appeal No. 0120141484 Hearing No. 450-2012-00244X Agency No. DLAF-11-0219 DECISION On March 3, 2014, Complainant filed an appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency's February 25, 2014, final order concerning her equal employment opportunity (EEO) complaint alleging 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 the Equal Pay Act of 1963 (EPA), as amended, 29 U.S.C. § 206(d) et seq. For the following reasons, the Commission REVERSES the Agency's final order. ISSUES PRESENTED The issues presented are: (1) whether the Agency failed to conduct a timely investigation of Complainant's complaint as required by 29 C.F.R. § 1614.108(e); (2) whether the Commission should sanction the Agency for its non-compliance and, if so, what the appropriate sanction is; and (3) whether there is evidence in the record that establishes Complainant's right to relief. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a GS-6 Electronic Duplicating System Technician (EDST) for the Agency's Document Services, Oklahoma City Office Group, at the Red River Army Depot in Texas. Document Services at the Red River Army Depot consisted of two functions: the Production function in Building 184 and the Electronic Document Management Services (EDMS) function in Building 499. Complainant and a GS-7 Lead EDST (CW1 - Caucasian, male) were the only two employees in the Production function. They were supervised by the Production Manager (P1 - Hispanic, male), who was based in Oklahoma. There was only one employee in the EDMS function, a GS-5 Electronic Duplicating Systems Operator (EDSO) (CW2 - Caucasian, female). Both Document Services functions were under separate chains of command, but fell under the oversight of the Oklahoma City Office Group Director (D1 - Caucasian, male), who was based in Oklahoma. On September 26, 2011, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of race (African-American) and sex (female) when:2 1. During a visit on February 25, 2011, P1 threatened to transfer the Production function from Building 184 to another facility and laughing stated that she would be without a job. 2. From February to May 2011, management assigned her on a part-time basis to assist CW2 in Building 499 with the EDMS backlog. Management did not assign CW1 to assist. Management also assigned two other GS-5 EDSOs (CW3 - Caucasian, female; CW4 - Caucasian, female), who were based in Oklahoma, to assist remotely. 3. After she helped eliminate the backlog, management did not give her a cash award or a thank you letter. Management also did not document her assistance as an official detail. 4. Since 2004, management has allowed CW1 to work more overtime. 5. Since 2004, management has compensated her as a GS-6 and CW1 as a GS-7, even though they perform the same work. The Agency accepted Complainant's complaint for investigation. On June 8, 2012, Complainant requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ) when she did not receive the Agency's report of investigation (ROI) after 180 days. The Agency began its investigation on July 30, 2012 and completed its investigation on August 27, 2012. In a February 15, 2013, acknowledgment and order, the AJ advised the parties that failure to comply with the Commission's regulations may result in sanctions. On April 19, 2013, in her pre-hearing report, Complainant requested that the AJ issue a default judgment in her favor, or impose another sanction, for the Agency's actions during the EEO complaint process. Specifically, Complainant stated that the Agency failed to conduct a timely investigation of her complaint. In addition, Complainant stated that the Agency failed to provide the EEO Investigator with certain requested documents. The AJ held a hearing on May 21-22, July 17-18, and August 14, 2013. In her opening and closing statements, Complainant again raised the issue of sanctions. On January 29, 2014, the AJ issued a decision finding no discrimination. Regarding the Agency's actions during the EEO complaint process, the AJ stated that she "considered Complainant's criticisms of the investigation conducted by the Agency and determined that the investigation was sufficient." Regarding claims 1-4, the AJ found that Complainant did not establish disparate treatment or harassment under Title VII because there was no evidence that her race or sex motivated management's actions. In so finding, the AJ credited testimony from P1, D1, and CW1. As to claim 1, the AJ found that Headquarters wanted to consolidate all payroll document production to a centralized location, P1's visit was an effort by management to combat that decision, and management's efforts ultimately succeeded in keeping the work at Complainant's facility. As to claim 2, the AJ found that management assigned Complainant instead of CW1 to assist with the EDMS backlog because she was the lower-grade employee and CW1 was the primary contact in connection with the Production function. As to claim 3, the AJ found that management gave all the employees who assisted CW2 with the EDMS backlog (Complainant, CW3, CW4) a time-off award. In addition, the AJ found that Human Resources had informed management that Complainant's assistance with the EDMS backlog could not be documented as an official detail, there was no evidence that Human Resources held any discriminatory animus towards her, and there was no evidence that CW3 or CW4 received documentation of their assistance as an official detail. As to claim 4, the AJ found that Complainant and CW1 could request overtime directly from management, Complainant did not request as much overtime and therefore worked less overtime, and management did not deny any overtime requests from Complainant. Regarding claim 5, the AJ found that Complainant did not establish a prima facie case of compensation discrimination under the EPA because, although she and CW1 performed much of the same work, there were significant differences which showed that their work was not substantially equal in terms of responsibility. In so finding, the AJ credited testimony from P1, D1, and CW1. Specifically, the AJ found that CW1 was the primary contact for management in Oklahoma and for customer organizations at the Red River Army Depot. In addition, the AJ found that CW1 oversaw the workflow and workload in the Production function, which consisted of him and Complainant. Moreover, the AJ found that CW1 was primarily responsible for receiving customer requests and ensuring that the work was completed in a timely manner. Further, although Complainant from time to time stepped into CW1's role to cover for him when he was absent, the AJ found that it did not translate into management expecting her to fulfill a lead role in the office. The Agency subsequently issued a final order adopting the AJ's finding that Complainant did not prove that management subjected her to discrimination as alleged. Complainant then filed the instant appeal. CONTENTIONS ON APPEAL On appeal, Complainant argues, among other things, that the Commission should sanction the Agency for failing to conduct a timely investigation of her complaint by issuing a default judgment in her favor. In addition, Complainant argues that management's testimony was not credible and that the AJ overlooked certain testimony from CW1. In opposition to Complainant's appeal, the Agency argues that Complainant has not shown that the AJ abused her discretion by not issuing sanctions. Moreover, the Agency argues that substantial evidence in the record supports the AJ's finding of no discrimination. STANDARD OF REVIEW Pursuant to 29 C.F.R. § 1614.405(a), all post-hearing factual findings by an AJ will be upheld if supported by substantial evidence in the record. Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477 (1951) (citation omitted). A finding regarding whether or not discriminatory intent existed is a factual finding. See Pullman-Standard Co. v. Swint, 456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a de novo standard of review, whether or not a hearing was held. An AJ's credibility determination based on the demeanor of a witness or on the tone of voice of a witness will be accepted unless documents or other objective evidence so contradicts the testimony or the testimony so lacks in credibility that a reasonable fact finder would not credit it. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 9, § VI.B. (Aug. 5, 2015). ANALYSIS AND FINDINGS Agency's Non-Compliance with 29 C.F.R. § 1614.108(e) Pursuant to 29 C.F.R. § 1614.108(e), agencies must complete an investigation of a formal EEO complaint within 180 days of the filing of the complaint unless the parties agree in writing to extend the period for not more than an additional 90 days. Here, Complainant did not agree to an extension during the regulatory 180-day period, therefore, the Agency was required to complete the investigation of Complainant's complaint in or before March 2012. The record reveals, and the Agency does not dispute, that no investigation was ever begun, much less completed, within the 180-day period. Instead, the record reflects that the Agency only began its investigation in July 2012 (and completed it in August 2012) after Complainant requested a hearing before an AJ. We find that the Agency has not provided any documentation or explanation for its failure to investigate Complainant's complaint in or before March 2012. Accordingly, we find that the Agency failed to conduct a timely investigation of Complainant's complaint as required by 29 C.F.R. § 1614.108(e). Sanctions Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Veterans Affairs, EEOC Appeal No. 0720070045 (Sept. 10, 2007), request for reconsideration denied, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in "tailoring" a sanction and determining if a particular sanction is warranted: (1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice; and (4) the effect on the integrity of the EEO process. Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007). In the case at hand, we find that the Agency has not complied with the Commission's regulations, and has not shown good cause for its actions, when it failed to complete its investigation within 180 days of the date of filing of Complainant's complaint. We also note that, with regard to the fourth factor, the effect on the integrity of the EEO process should not be underestimated when tailoring a sanction. Cox v. Soc. Sec. Admin., EEOC Appeal No. 0720050055 (Dec. 24, 2009). "Protecting the integrity of the 29 C.F.R. Part 1614 process is central to the Commission's ability to carry out its charge of eradicating discrimination in the federal sector." Id. The procedures contained in the Commission's regulations are no more or no less than the necessary means to eliminate unlawful employment discrimination in Federal employment. Mach v. Dep't of Defense, EEOC Appeal No. 0120080658 (Nov. 30, 2010). The Commission must ensure that all parties abide by its regulations. Based on the above, we find that the most appropriate sanction is a default judgment in Complainant's favor. Accordingly, we find that the Agency discriminated against Complainant as alleged. Our decision to issue a default judgment will effectively emphasize to the Agency the need to conduct timely investigations of EEO complaints. We note that the Commission has previously issued default judgments in response to an agency's failure to conduct a timely investigation of a complaint. See, e.g., Royal, supra (affirmed AJ's issuance of a default judgment where no investigation began within the 180-day period following the filing of the complaint); Talahongva-Adams v. Dep't of the Interior, EEOC Appeal No. 0120081694 (May 28, 2010) (affirmed AJ's issuance of a default judgment where no investigation began within the 180-day period following the filing of the complaint). Moreover, the Commission has previously stated that an agency's delay in completing the investigation within the 180-day regulatory period "was no small non-compliance matter." See Royal, supra. Remedy Following Default Judgment After deciding to issue a default judgment, we need to determine if there is evidence that establishes Complainant's right to relief. The Commission has held that one way to show a right to relief is to establish the elements of a prima facie case. Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (Apr. 21, 2005). To establish a prima facie case of disparate treatment, a complainant must show that: (1) they are a member of a protected class; (2) they were subjected to an adverse employment action concerning a term, condition, or privilege of employment; and (3) they were treated differently than similarly situated employees outside their protected class, or there was some other evidentiary link between membership in the protected class and the adverse employment action. See McCreary v. Dep't of Def., EEOC Appeal No. 0120070257 (Apr. 14, 2008); Saenz v. Dep't of the Navy, EEOC Request No. 05950927 (Jan. 9, 1998); Trejo v. Soc. Sec. Admin., EEOC Appeal No. 0120093260 (Oct. 22, 2009). To establish a claim of harassment, a complainant must show that: (1) they belong to a statutorily protected class; (2) they were subjected to harassment in the form of unwelcome verbal or physical conduct involving the protected class; (3) the harassment complained of was based on their statutorily protected class; (4) the harassment affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with the work environment and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See generally Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). To establish a prima facie case of compensation discrimination under the EPA, a complainant must show that: (1) they received a lower wage than paid to an employee of the opposite sex in the same establishment; and (2) the employees perform substantially equal work (in terms of skill, effort, and responsibility) under similar working conditions. See EEOC Compliance Manual Section 10, "Compensation Discrimination," No. 915.003, § IV.B (Dec. 5, 2000). Here, we find that the record does not support a determination that Complainant established a prima facie case of disparate treatment, a claim of harassment, or a prima facie case of compensation discrimination under the EPA. Regarding disparate treatment (claims 2-4), the record does not show that Complainant was treated differently than similarly situated employees outside her race or sex, or that there was any other evidentiary link between Complainant's race or sex and the Agency's actions. As to claims 2 and 4, we find that Complainant and CW1 are not similarly situated because substantial evidence in the record supports the AJ's finding that their work was different in terms of responsibility. We find that this is relevant in the context of claims involving a difference in work assignments and work overtime. As to claim 3, we find that Complainant was treated similarly to C3 and CW4 because substantial evidence in the record supports the AJ's finding that neither received a cash award for their assistance or documentation of their assistance as an official detail. Regarding harassment (claims 1-4), we find that substantial evidence in the record supports the AJ's finding that the Agency's actions were not based on Complainant's race or sex. Regarding compensation discrimination under the EPA (claim 5), we find that substantial evidence in the record supports the AJ's finding that there were significant differences which showed that Complainant's work and CW1's work was not substantially equal in terms of responsibility. Although Complainant argues that management's testimony was not credible because their testimony on certain matters conflicted with the testimony of CW1, we defer to the AJ's credibility determinations. The AJ had the opportunity to observe the witnesses during the hearing and subsequently made credibility determinations. As there is no objective documentary evidence to contradict the AJ's credibility determinations, we decline to substitute our own judgment for that of the AJ with respect to the issue of credibility. See EEO MD-110, Ch. 9, § VI.B. Consequently, although we find that Complainant was subjected to discrimination here pursuant to our default judgment against the Agency, we do not find an entitlement to an individual right of relief for these matters. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the Agency's final order and REMAND the matter in accordance with this decision and the ORDER below. ORDER (C0610) Unless otherwise indicated, the Agency is ordered to take the following remedial action within one hundred and twenty (120) days of the date this decision becomes final: 1. The Agency shall provide training to the responsible EEO management officials regarding their obligations in processing EEO complaints. 2. The Agency shall consider taking appropriate disciplinary action against the responsible EEO management officials. The Commission does not consider training to be disciplinary action. The agency shall report its decision to the Compliance Officer. If the agency decides to take disciplinary action, it shall identify the action taken. If the agency decides not take disciplinary action, it shall set forth the reason(s) for its decision not to impose discipline. If any of the responsible management officials have left the agency's employ, the agency shall furnish documentation-of their departure date(s). 3. The Agency shall post a notice in accordance with the paragraph below. 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 verifying that the corrective action has been implemented. POSTING ORDER (G0914) The Agency is ordered to post at its Equal Employment Opportunity Operations Division office, located in Fort Belvoir, Virginia, copies of the attached notice. Copies of the notice, after being signed by the Agency's duly authorized representative, shall be posted both in hard copy and electronic format by the Agency within 30 calendar days of the date this decision becomes final, and shall remain posted for 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 10 calendar days of the expiration of the posting period. ATTORNEY'S FEES (H0610) If Complainant has been represented by an attorney (as defined by 29 C.F.R. § 1614.501(e)(1)(iii)), 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. 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 (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 (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 (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 _1/30/17_________________ 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 For purposes of clarity, we have renumbered and rephrased Complainant's claims. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120141484 2 0120141484