U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Edmond C.,1 Complainant, v. Dr. David J. Shulkin, Secretary, Department of Veterans Affairs, Agency. Appeal No. 0120170879 Hearing No. 510-2015-00170X Agency No. 200I05162014103640 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated December 28, 2016, dismissing his complaint alleging unlawful 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 At the time of events giving rise to this complaint, Complainant was an applicant at the Agency's VAMC facility in Bay Pines, Florida. On July 7, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal when he was not selected for two positions for which he had applied. The Agency investigated the matter and thereafter Complainant requested a hearing. An EEOC Administrative Judge ("AJ1") dismissed the complaint in its entirety on October 26, 2016. The Agency adopted the AJ's decision. The instant appeal followed. In support of the dismissal, AJ1 went into exhaustive detail regarding Complainant's extensive EEO history, noting that with respect to an earlier hearing (EEOC Hearing No. 510-2010-00229X) on a different complaint, Complainant had been found to have engaged in contumacious conduct, had violated a protective order, and was "argumentative, disrespectful, and unprofessional" towards that administrative judge ("AJ2") and the Agency representative. AJ1 noted that AJ2 found that Complainant exhibited a continued pattern of misuse of the EEO process, and remanded the matter for a decision by the Agency without a hearing.2 AJ1 noted that another administrative judge ("AJ3") also dismissed Complainant's request for a hearing due to his contumacious conduct in November 2013. EEOC Hearing No. 510-2013-00394X. Complainant was warned in this case about trying to bully and intimidate AJ3. On October 29, 2014, a fourth administrative judge ("AJ4") found that Complainant's motion for sanctions against the Agency was filed with the intent to harass. Complainant also attempted to pursue similar matters in court, and the United States District Court, Middle District of Florida (Tampa Division) in Case No. 8:15-cv-750-T-30TGW dismissed the case, and enjoined Complainant from filing any new action, complaint, or claim for relief against the Agency, related to his employment at Bay Pines VA Hospital. In addressing Complainant's recent conduct at issue in the instant complaint, AJ1 noted that Complainant posted a confidential video deposition on youtube.com, despite a protective order issued by AJ2 that required that "any depositions, videotapes, and transcripts not be disclosed to any individuals or entities other than the Administrative Judge." AJ1 also found that Complainant engaged in improper conduct and misuse of the EEO process. AJ1 noted that Complainant falsely accused the Agency's representative of having a history of falsely accusing him of contumacious conduct over the telephone and reported the representative to the bar association. AJ1 found that Complainant also filed a meritless motion for sanctions against the Agency, violated another judge's order granting a stay, and engaged in ex parte communications. AJ1 determined that Complainant has "a history and pattern of abusing the judicial process and not being deterred by prior explanations and warnings about the necessity to comply with rules and court orders, and simply behave in a professional manner."3 AJ1 found that the record established that "Complainant has continued to engage in misconduct and disobeyed Orders, whether from numerous EEOC Administrative Judges, a federal Magistrate, or a United States District Court Judge." Finally, AJ1 noted that Complainant was warned that his conduct might result in sanctions. AJ1 found that Complainant's pattern included acting willfully and in bad faith, despite numerous warnings from multiple judges, in different forums, to cease from such behavior. Therefore, as a sanction, AJ1 dismissed the complaint in its entirety. ANALYSIS AND FINDINGS An AJ has the authority to sanction a party for failing, without good cause shown, to fully comply with an order. See 29 C.F.R. § 1614.109(0(3). Dismissal of a complaint as a sanction, however, is only appropriate in extreme circumstances, where the complainant has engaged in contumacious conduct, not simple negligence. See Hale v. Department of Justice, EEOC Appeal No. 01A03341 (December 12, 2000). Where a lesser sanction could deter the conduct and equitably remedy the opposing party, an AJ may be abusing her discretion to impose a harsher sanction. Id. Based on the record before us, we find that the AJ's decision to sanction Complainant for his conduct was appropriate under the circumstances presented. Complainant's contumacious conduct has gone on for several years, with different administrative judges, as well as in federal court, and he has shown no intent to change. We do not find that a lesser sanction would deter Complainant's conduct given that in the past administrative judges have remanded his cases to the Agency for decisions without a hearing, but his conduct continues. Accordingly, the Agency's final decision adopting the AJ's sanction of dismissal of the complaint in its entirety is AFFIRMED. 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 March 7, 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 On August 27, 2013, we issued a decision in EEOC Appeal No. 0120122165 that found that AJ2 did not abuse her discretion in dismissing Complainant's request for a hearing for contumacious conduct. The decision stated "[t]he AJ showed admirable restraint in not dismissing Complainant's complaint outright." 3 AJ1 noted that Complainant had filed 20 EEO complaints against the Agency and six filings in federal court. The AJ stated that the issues in the case at bar are a continuation of Complainant's insistence that the Agency rehire him to a security position (even though he was terminated from his previous police officer position with the Agency) and even though his termination was upheld by the Merit Systems Protection Board. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120170879 5 0120170879