U.S. Equal Employment Opportunity Commission (E.E.O.C.)
Office of Federal Operations
ADA L * * * COMPLAINANT,
v.
PATRICK R. DONAHOE, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE (GREAT LAKES AREA), AGENCY.
Appeal No. 0120141610
Hearing No. 440-2013-00067X
Agency No. 1J-602-0041-09
February 18, 2016
 
DECISION
 
Pursuant to 29 C.F.R. § 1614.405, the Commission accepts Complainant's appeal from the Agency's February 27, 2014 final decision concerning an equal employment opportunity (EEO) complaint claiming 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.
  
BACKGROUND
 
During the period at issue, Complainant worked as a Mail Handler at the Agency's Palatine, Illinois Processing and Distribution Center.
 
On September 6, 2012, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of race and national origin (Korean), sex (female), color (unspecified), and in reprisal for prior EEO activity when:
1. beginning September 4, 2009 and continuing, management yelled at her and made derogatory comments to her in front of others;
2. on September 14, 2009, management assigned her to work in two separate units without assistance;
3. on September 21, 2009, management assigned her to work in another unit;
4. on October 6, 2009, management began moving around the equipment in a violent manner and limited her to a fifteen-minute break; and
5. on July 2 and 5, 2012, management excessed her out of her Flat Sorter Separator (FSS) bid assignment.
 
After the investigation of the instant formal complaint, Complainant was provided with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing.
 
By an Order entitled "Order of Dismissal of Hearing Request" dated January 13, 2014, the AJ cancelled the hearing request on the grounds that Complainant, through her former attorney, failed to timely file prehearing submissions1 as ordered. The complaint was remanded to the Agency for a final decision on the record.
 
On February 27, 2014, the Agency issued its final decision. As an initial matter, the Agency dismissed claims 1 and 4 for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). The Agency determined that Complainant did not allege she suffered a personal loss or harm to a term, condition or privilege of her employment. In the alternative, the Agency addressed claims 1 -- 5 on the merits, finding insufficient evidence of record to establish that discrimination or unlawful retaliation occurred.
 
The instant appeal followed. On appeal, Complainant requests that the Commission remand the complaint for a hearing. In the alternative, Complainant also argued the merits of her case.
  
ANALYSIS AND FINDINGS
 
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), at Chap. 9, § VI.A. (Nov. 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "reviews the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
 
Complainant, through a newly retained attorney,2 argues that the Agency's decision on the merits, finding no discrimination, was improper. Complainant argues that she was singled out and excessed because of her gender and her ability to speak fluent English as a Korean immigrant." Complainant stated that her race is a factor concerning her harassment allegation because the supervisor "does not scream at those employees who share his racial background that that he singles [Complainant] out for special humiliation because she is a Korean woman and because he is aware that her limited English makes her unable to defend herself when he goes out his way to subject her to gross intimidation."
 
However, more significantly, Complainant's attorney argues on appeal that the AJ improperly dismissed Complainant's hearing request, as discussed below.
 
The Commission's regulations afford broad authority to AJs for the conduct of hearings. 29 C.F.R. § 1614.109 et seq; EEO MD-110, Chap. 7, § III(D). An AJ has inherent powers to conduct a hearing and issue appropriate sanctions, including a default judgment. Id.; see Matheny v. Dep't of Justice, EEOC Request No. 05A0373 (Apr. 21, 2005); Roundtree v. Dep't of Treasury, EEOC Appeal No. 07A00015 (July 17, 2001).
 
Where a party does not respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. § 1614.109(f)(3). An AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the non-complying party; (2) consider the requested information to be established in favor of the opposing party; (3) exclude other evidence offered by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party; or (5) take other action deemed appropriate, e.g., payment of costs and expenses by the non-complying party. Id. An AJ must first issue a Notice to Show Cause to the non-complying party. EEO-MD-110, Chap. 7, § III(D), n. 6; see DaCosta v. Dep't of Education, EEOC Appeal No. 01995992 (Feb. 25, 2000).
 
In this case, the AJ dismissed Complainant's hearing request because Complainant, through her former attorney, failed to submit required prehearing submissions within the deadline established by the AJ's April 11, 2013 Acknowledgment and Scheduling Order. Specifically, the AJ instructed the parties to file prehearing submissions by July 30, 2013. Complainant, who was represented by counsel, did not file prehearing submissions. On December 6, 2013, the AJ issued an Order to Show Cause. Complainant's attorney responded to the AJ's April 11, 2013 Order by stating that he had inadvertently forgotten the date for filing the prehearing submissions. Complainant's attorney also filed the required prehearing submissions as part of his response to the order to show cause.
 
The record reflects that in her January 13, 2014 Order of Dismissal of Hearing Request, the AJ noted that Complainant argued that the Agency "did not respond to her Motion to Amend or to a 6/13/13 order. While Agency counsel's behavior has hardly been exemplary, he did not fail to respond any of my orders. The 6/13/13 order instructed both parties to discuss settlement and to file a joint statement summarizing those efforts. No one filed the settlement statement."
 
On appeal, Complainant, through the newly retained attorney, argues that Complainant's prior attorney "generally complied with the initial scheduling order and other orders issued by the [AJ]. For instance, [Complainant's] prior counsel issued discovery pursuant to the order. In fact, it was the Agency that failed to comply with the [AJ's] order regarding discovery in that the agency did not respond to [Complainant's] discovery and [Complainant] had to file a motion to compel, which was granted by the [AJ], to get the Agency to comply with discovery...similarly, [Complainant's] counsel appears to have complied with the [AJ's] Order to deliver a settlement proposal to the Agency by July 1, 2013."
 
Further, Complainant argues that her prior attorney timely responded to the AJ's December 6, 2013 Show Cause Order and explained his inadvertent failure to file the prehearing submissions...moreover, [Complainant's] prior counsel filed the prehearing submissions in response to the ALJ's Order to Show Cause."
 
Complainant argues that "it appears as though the [AJ's] imposition of the sanction was not even handed. For example, although the [AJ] mentioned that the Agency has not served any answers to discovery in her June 28, 2013 Order... the [AJ] did not sanction the Agency....finally, the [AJ] did not appear to consider whether the sanction was designed to serve the purpose of 'deterring the [offending party] from engaging in similar conduct in the future without being overly harsh in light of the nature of the offense.' In this case, the sanction was overly harsh in light of the nature of the offense. This is particularly true in that [Complainant's] attorney's conduct was inadvertent and that [Complainant] is being punished for the conduct of her attorney and not for any of her own actions in the matter."
 
The Commission has long held that sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. 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. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, an AJ may be abusing his or her discretion to impose a harsher sanction. See Gray v. Department of Defense, EEOC Appeal No.07A50030 (March 1, 2007); Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 8, 2000). Factors pertinent to "tailoring" a sanction, or determining whether a sanction is, in fact, warranted, would necessarily include the extent and nature of the non-compliance, to include the justification presented by the non-complying party; the prejudicial effect of the noncompliance on the opposing party; the consequences resulting from the delay in justice, if any; and, the effect on the integrity of the EEO process. Given the specific circumstances of this case, we find that the AJ erred by not properly tailoring the decision to impose sanctions against Complainant based on a thorough consideration of the factors discussed above. We find that the sanction of cancelling the hearing, particularly in light of what the AJ recognized as the less than exemplary behavior of Agency counsel, was overly harsh in this case.
 
Accordingly, the Agency's final decision is VACATED and the matter is REMANDED for a hearing pursuant to this decision and the ORDER below.
 
Because of our determination in this case, we find it unnecessary to address the Agency's finding on the merits.
  
ORDER The Agency shall submit to the Hearings Unit of the Chicago District Office a copy of this decision and a request for a hearing within thirty (30) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit of the Chicago District Office. Thereafter, the Administrative Judge 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 A
  accordance with 29 C.F.R. § 1614.110.
  
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 (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 Complainants Right to File a Civil Action for the specific time limits).
 
 
FOR THE COMMISSION:
 
Carlton M. Hadden
Director
Office of Federal Operations
Footnotes

1

The AJ stated that these submissions consisted of an agreed statement of the claims, a list of proposed witnesses, a copy of each proposed exhibit, and statement of claimed damages.

2

The record reflects that Complainant's current attorney did not begin representing Complainant until the filing of the instant appeal.