U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maya F.,1 Complainant, v. Ryan K. Zinke, Secretary, Department of the Interior (National Park Service), Agency. Appeal No. 0120162362 Hearing No. 570-2014-00880X Agency No. NPS-13-0501 DECISION On July 13, 2016, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency's June 13, 2016, final decision concerning her 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Secretary, GS-0318-07 at the Agency's Wolf Trap National Park facility (Wolf Trap) in Vienna, Virginia. On December 31, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of age (75) when, effective October 6, 2013, Complainant was reassigned from the position of Secretary, GS-0318-07 at Wolf Trap to the position of Secretary, GS-0318-07, at National Capital Parks - East (NACE). At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Complainant requested a hearing. The AJ issued an Order and Report on December 21, 2015, allowing the parties to initiate discovery no later than January 8, 2016. All discovery was to be completed by April 8, 2016. On March 3, 2016, the Agency filed a motion to compel Complainant to submit to deposition. Complainant responded on March 10, 2016. The AJ granted the Agency's motion on March 16, 2016. The AJ noted Complainant refused to attend the deposition because she believed that there was no specific showing of need; that she should have been provided an attorney by the government; and the Office of Civil Rights was to review the legality of reassignment which was at issue in the instant complaint. The AJ issued an Order to Complainant to appear for a deposition within 30 days at a time and location convenient for both parties. On April 7, 2016, the Agency filed a Motion to Dismiss and Complainant responded to the Agency on April 15, 2016. By decision to dismiss dated April 20, 2016, the AJ determined that Complainant failed to show good cause for her failure to comply the AJ's Order. As such, 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 her to discrimination as alleged. Complainant filed the instant appeal. Complainant asserted that she had been with the Agency's Wolf Trap facility for 24 years and it was located across the street from her house. She was reassigned to the NACE facility on August 27, 2013. She claimed that she was told that she could either accept a reassignment or retire. She argued that the "GS-7" position at NACE was still under development and they had to redesign the position to better fit the needs of the operation. Complainant challenged the Agency's argument that they needed to reassign employees due to severe budget short falls at the Wolf Trap facility asserting that her former position has not been eliminated. In addition, she asserted that she was not given documentation on the performance of her duties at NACE which was the first time in her career that she has been placed in such a situation. Complainant also alleged that the report of investigation was prejudicial and she asserted that the AJ's dismissal was not supported by the record. The Agency asked that the Commission affirm its final decision finding no discrimination. ANALYSIS AND FINDINGS The AJ's Dismissal of Complainant's Hearing Request In the case at hand, the AJ cancelled the hearing as a sanction against Complainant for failing to show good cause for failing to comply with the AJ's orders. The Commission's position concerning sanctions was specifically set out in Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec.8, 2000): 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); [EEOC Management Directive 110, 7-11 (Aug 15, 2015)]. Such sanctions may 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. Id. However, such 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. 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. See Thomas v. Department of Transportation, EEOC Appeal No. 01870232 (March 4, 1988) (citing McKelvey v. AT&T Technologies, Inc., 789 F.2d 1518 (11th Cir. 1986)). Hale, at 2. An AJ must distinguish between conduct that does not warrant the imposition of a sanction and conduct that does. We note that the Representative misstated the standard for dismissal of a hearing by the AJ. He claimed that the AJ needed to find that Complainant engaged in "contumacious conduct." The correct standard is the one presented above from EEOC's MD-110. In this case, the record showed that Complainant engaged in the conduct indicated by the AJ in the order to show cause. Complainant failed to show good cause, the AJ canceled the hearing. Upon review of the record, we find that the AJ's denial of Complainant's hearing request under these circumstances was appropriate. Standard of Review 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"). Disparate Treatment A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Once the Agency has met its burden, Complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Upon review of the record, we find that the Agency provide legitimate, nondiscriminatory reasons for its action. The Regional Director (61 years old) indicated that he was ultimately the responsible management official but he included the Superintendent (56 years old) and the Acting Superintendent (46 years old) in the decision-making process. He asserted that Complainant's reassignment was a result of severe budget shortfalls at several parks within the region. As such, management across the region were instructed to reassign employees. The Regional Director first sought a volunteer for the reassignment. However, no employee volunteered for the reassignment. Management indicated that Complainant's position was selected for reassignment because her responsibilities had become automated and her duties could be reassigned among the other employees. Therefore, Complainant was the only employee from the Wolf Trap facility who was reassigned. Upon review, we find that the Agency met its burden. We turn to Complainant to establish that the Agency's reason was pretext for age discrimination. Upon review, it was clear that Complainant did not seek any reassignment noting that she lived across the street from the Wolf Trap facility. Complainant challenged the Agency's arguments regarding budget shortfalls but failed to provide any evidence to substantiate her assertion. In addition, she argued that she was given the reassignment in hopes she would retire. Again, Complainant did not provide any support for her assertion. Therefore, based on a review of the record, we conclude that Complainant failed to establish that the Agency's reasons were pretext for age discrimination. 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. 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 April 24, 2018 __________________ 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 0120162362 6 0120162362