U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Herman P.,1 Complainant, v. Sheila Crowley, Acting Director, Peace Corps, Agency. Appeal No. 0120162063 Hearing No. 570-2014-01149X Agency No. PC-14-02 DECISION On June 8, 2016, Complainant filed a premature appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), prior to the issuance of the Agency's July 5, 2016, final decision concerning his 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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, the Commission AFFIRMS the Agency's final decision. ISSUES PRESENTED The issues presented are: (1) whether it was an abuse of discretion for the Equal Employment Opportunity Commission Administrative Judge (AJ) to dismiss Complainant's hearing request; and (2) whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on sex, color, disability, age, and/or reprisal. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Director of Management and Operations at the Agency's Guyana Post in Georgetown, Guyana. Complainant was appointed to the position on June 16, 2013, and his employment was subject to an 18-month probation period. From mid-August 2013 through November 1, 2013, Complainant's first-line supervisor was the Acting Country Director (S1A), with the exception of one week in September 2013 when the Director of Programming and Training served as Acting Country Director in S1A's absence (S1B). In November 2013, the new Country Director became Complainant's first-line supervisor (S1C). At all times relevant to his complaint, Complainant's second-line supervisor was the Acting Chief Administrative Officer of the Inter-America and Pacific Region (S2). S2 stated that she hired Complainant for the position because his interview demonstrated good people skills and passion for the Agency's mission. S2 visited Guyana between November 12, 2013, and November 19, 2013. According to S2, she had never been to the Guyana Post and was interested in seeing the operations there, but the main reason for her visit was to look into concerns that had been reported to her about Complainant's performance issues. S2 stated that S1A had told her that Complainant relied too heavily on his staff, said inappropriate things, and generally exhibited a negative attitude. S1A averred that Complainant appeared to be signing off on his subordinates' work without learning the systems or doing strategic planning or oversight. According to S1A, Complainant's communication style was negative, angry, and condescending, which did not mesh well with Guyanese culture. According to S2, S1B had told her that Complainant slammed the door in the face of a Guyanese staff member, which is considered very offensive in Guyanese culture, and that Complainant repeatedly made disparaging comments about women. S1B stated that Complainant was not clear in his communication and seemed reluctant to do his work tasks. According to S1B, Complainant slammed a door in the face of the Guyanese Training Manager and then failed to apologize after S1B explained the Guyanese cultural norms. S1B averred that Complainant made sexually suggestive comments about women's bodies on a daily basis. S2 averred that during her visit to Guyana, Complainant was very different than he had been in his interview and was very negative and dismissive. According to S2, Complainant did not display the sense of teamwork that is ingrained in Agency culture. S2 stated that during a training session, someone asked him what he liked to do in Guyana and he responded that he did not like to do anything. S2 also stated that Complainant could not answer her questions regarding the technical aspects of his position. S2 averred that during an on-site visit at a girls' camp, she observed Complainant ask the young host where the whiskey was because he was ready for a drink. S2 stated that she told Complainant that the comment was inappropriate and that Complainant angrily responded that the comment reflected his sense of humor. S2 also stated that Complainant was dressed inappropriately for the on-site visit, wearing sweatpants and a t-shirt. According to S2, while she was in Guyana, she told Complainant that he seemed to lack the skill set for the position that he had exhibited in his interview, and Complainant became very angry and told her that she did not understand the situation. After her visit to Guyana, S2 prepared two reports, including a DMO Specific Site Visit Report. In this report, S2 documented her concerns with Complainant's technical skills and attitude and made 13 recommendations for Complainant to improve his performance and behavior. S2 averred that Complainant did not respond to her reports for several weeks, and only then after she specifically asked him to respond. In Complainant's response to the DMO Specific Site Visit Report, he generally asserted that the report was libelous and insensitive, and he refuted S2's recommendations. S2 stated that she discussed her concerns about Complainant's performance with her supervisor, the Regional Director (S3), who advised her to reach out to Human Resources. According to S2, Human Resources advised her that there was sufficient information to terminate Complainant and that a performance improvement plan (PIP) was not required because he was a probationary employee. On December 17, 2013, S1C issued Complainant a memorandum notifying him that he was being terminated during his probationary period effective January 16, 2014, for performance concerns. At the time of events giving rise to this complaint, Complainant was a 65-year-old Black male. According to Complainant, he has three disabilities: skin allergies, gout, and asthma. Complainant stated that S1A allowed him to wear thong sandals or socks in the office during his gout flare ups. Complainant averred that S2 was aware that he had gout because they had discussed the fact that S2's husband also has gout. Complainant alleged that his prior protected EEO activity consisted of contacting the Agency Inspector General on December 17, 2013, with allegations that S2 had retaliated against him. On February 10, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of sex (male), color (Black), disability (physical), age (65), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when on December 17, 2013, he was issued a notice that he was being terminated during his probationary period, effective January 16, 2014. 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, but the AJ denied the hearing request for Complainant's failure to show good cause for not participating in the initial prehearing conference. On March 1, 2016, the AJ assigned to the case issued a Notice of Receipt, Order to Forward Notice to Agency Representative and Order Scheduling Initial Conference, which was mailed to Complainant's address of record. The March 1, 2016, order scheduled the initial conference for May 5, 2016, and directed the parties to provide the AJ and each other with their contact information. Complainant did not provide the AJ or the Agency representative with his contact information in advance of the initial conference. The Report of Investigation did not contain a phone number for Complainant, so the Agency representative emailed Complainant on May 5, 2016, regarding the initial conference and obtained a phone number for Complainant from directory assistance, which was not in service. On May 5, 2016, the AJ issued an Order to Show Cause because Complainant failed to provide his contact information or participate in the initial conference as directed in the March 1, 2016, order. The AJ sent the Order to Show Cause to Complainant's email address and also sent a Reissued Order to Show Cause to Complainant's address of record on May 5, 2016. On May 9, 2016, at 7:19 p.m., Complainant sent an email to the AJ and to the Agency representative stating that he did not receive notice of the initial conference. On May 9, 2016, Complainant sent a second email, which stated, "To be clear: I did not receive a call from anyone on May 5, 2016 regarding this matter; and was standing by." Complainant did not respond further to the AJ's Order to Show Cause. On May 27, 2016, the AJ issued and Order of Dismissal from Hearing Process. The AJ noted that the March 1, 2016, notice was sent to Complainant's address of record and was not returned and found that Complainant's May 9, 2016, emails were contradictory, as one indicated that he was unaware of the conference on May 5, 2016, and the other indicated that he was standing by for the conference on May 5, 2016. Accordingly, the AJ found that Complainant failed to show good cause why his hearing request should not be dismissed. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. CONTENTIONS ON APPEAL On appeal, Complainant contends that his case is not frivolous and that his hearing request should not have been dismissed by the AJ because his number was not called. In response to Complainant's appeal, the Agency contends that the AJ acted within his discretion when he dismissed Complainant's hearing request. 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, at Chapter 9, § VI.A. (Aug. 5, 2015) (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 "review 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"). The AJ dismissed Complainant's hearing request for failure without good cause shown to comply with the AJ's March 1, 2016, order. An AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. § 1614.109(f)(3). The sanctions available to an AJ for failure to provide requested relevant information include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party. See Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). These 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 serve this purpose, an AJ may be abusing his or her discretion to impose a harsher sanction. An AJ's discretion to issue sanctions is premised on a party's failure to show good cause for the conduct at issue. After a careful review of the record, the Commission determines that the AJ did not abuse his discretion in dismissing Complainant's request for a hearing. The imposed sanction is warranted due to Complainant's failure to comply with the requirements of the March 1, 2016, order, and there is no showing that the AJ erred in sending the notice to Complainant at his address of record. The record further reveals that the AJ and the Agency attempted to contact Complainant by email and by using directory assistance, to no avail. We find that Complainant failed to offer sufficient justification for disregarding the AJ's order. See Garrett v. U.S. Postal Serv., EEOC Appeal No. 0120100848 (May 14, 2010). Accordingly, the AJ properly remanded Complainant's complaint to the Agency for a final decision without a hearing. Complainant alleged that he was subjected to discrimination based on sex, color, disability, age, and reprisal when he was removed during his probationary period. To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish a prima facie case by demonstrating that he was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). The prima facie inquiry may be dispensed with in this case, however, since the Agency has articulated legitimate and nondiscriminatory reasons for its conduct. See U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-17 (1983); Holley v. Dep't of Veterans Affairs, EEOC Request No. 05950842 (Nov. 13, 1997). To ultimately prevail, Complainant must prove, by a preponderance of the evidence, that the Agency's explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 519 (1993); Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley, supra; Pavelka v. Dep't of the Navy, EEOC Request No. 05950351 (Dec. 14, 1995). Here, the Agency has provided legitimate, nondiscriminatory reasons for terminating Complainant during his probationary period. Specifically, the Agency terminated Complainant because of his performance and behavior issues, reported by S1A and S1B and directly observed by S2 during her visit to Guyana. The preponderance of the evidence in the record does not establish that the Agency's proffered reasons are pretextual. 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 decision because it was not an abuse of discretion for the AJ to dismiss Complainant's hearing request and because the preponderance of the evidence in the record does not establish that discrimination occurred. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 12-29-2017 __________________ 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 0120162063 2 0120162063