U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alonzo L.,1 Complainant, v. W. Thomas Reeder, Director, Pension Benefit Guaranty Corporation, Agency. Appeal Nos. 0120171271, 01201712722 Hearing No. 570-2016-00037X Agency No. 15-010-F DECISION On February 16, 2017, 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 February 3, 2017, 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 the EEOC Administrative Judge (AJ) abused his discretion in dismissing Complainant's hearing request as a sanction; and (2) whether the preponderance of the evidence in the record establishes that Complainant was subjected to discrimination based on race, sex, color, disability, age, and/or reprisal when he was denied a career ladder promotion to GS-13. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as an Actuary, 1510, GS-12, in the Agency's Actuarial Services Division (ASD) in Washington, D.C.3 Complainant stated that he entered on duty with the Agency as an Actuary on June 25, 1995. Complainant's first-line supervisor was an Employee Benefits Supervisor (S1), and his second-line supervisor was a Division Manager (S2).4 S1 stated that she was assigned to a special project from March 2014 through September 30, 2014, and that S2 served as Complainant's first-line supervisor during that time. Complainant was a 59-year-old Caucasian, White male who had previously filed EEO complaints with the Agency. Complainant stated that S1 and S2 were aware that he had filed EEO complaints. According to Complainant, S1 and S2 are African-American, Black females who dislike him because he is a Caucasian, White male. Complainant averred that, when he first met S2, she told him that women are better multitaskers than men and that she has been hostile towards him since then. Complainant stated that most of the managers in ASD were female. Complainant stated that he had a physical disability, but he declined to specify his disability or whether it affected a major life activity.5 According to Complainant, he needed to take medical leave for his disability in 2012 and requested a reasonable accommodation in 2013. Complainant alleged that S1 and S2 resented his disability and his need for reasonable accommodation. Complainant stated that S1 and S2 held his disability against him when evaluating his performance. Complainant averred that he had trouble meeting work goals and deadlines because of his medical condition. According to Complainant, he met the criteria for a career ladder promotion to the GS-13 level (time-in-grade, fully effective performance, and demonstrated ability to perform higher-level work) at least since 2007. On September 18, 2014, the Chief Valuation Actuary (S3) issued Complainant a memorandum notifying him that he had met the time-in-grade and performance requirements for a career ladder for promotion to the GS-13 level but was not being promoted because S2 "communicated that you have not demonstrated the ability to work on more complex plans at a higher level" based on Complainant's "lack of timeliness of your case processing." ROI at 93. S3 stated that, pursuant to a Memorandum of Agreement with the union regarding a reorganization of ASD, he was required to notify ASD Actuaries who had not received promotion to the next career-ladder grade despite having met applicable time-in-grade and performance rating requirements of the reasons they had not been promoted prior to reassigning them. According to S3, Complainant was reassigned on October 5, 2014. Complainant averred that his performance reviews were always satisfactory. S1 stated that Complainant did not demonstrate that he could complete work at the GS-12 level, let alone work at the GS-13 level. According to S1, Complainant failed to meet agreed-upon deadlines and was not responsive to his customers. S1 stated that GS-13 Actuaries are expected to perform their assigned duties with little to no supervision, to work on some of the largest and most complex cases, and to conduct peer reviews and provide technical guidance to less senior Actuaries. The record contains a July 25, 2013, email from S2, which expresses concern with Complainant's ability to meet deadlines and provide customer service. On November 5, 2013, S1 issued Complainant a performance evaluation of "Meets Expectations" for fiscal year (FY) 2013. S1 recommended that Complainant improve in the following areas for FY 2014: quantity of work completed, timeliness of tasks, time management, following up on requests, being responsive to internal and external customers, attending team meetings consistently, proactively identifying and resolving issues prior to supervisory involvement, and communicating to get concerns addressed in a timely manner. According to the record, on March 5, 2014, S1 met with Complainant to notify him that his performance was below expectations because his workplan was incomplete and gave him 30 days to show improvement in his performance. On November 5, 2014, S2 issued Complainant a performance evaluation of "Meets Expectations" for FY 2014. S2 did not provide any comments to support the rating. Procedural History On February 12, 2015, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color (White), disability (physical), age (59), and reprisal for prior protected EEO activity when on or before September 18, 2014, and continuing thereafter he was denied a career ladder promotion to Actuary, 1510, GS-13. 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, and Complainant requested a hearing. On March 1, 2016, the AJ assigned to the case issued an Order of Acknowledgment and Scheduling of Initial Teleconference. The March 1, 2016, Order notified the party that failure to follow orders issued by the AJ could result in sanctions. On April 22, 2016, the AJ issued a Case Management Order, which stated that discovery needed to be completed within 90 calendar days of the issuance of a decision on Complainant's Motion to Amend. On May 17, 2016, the AJ denied Complainant's Motion to Amend. On June 2, 2016, the Agency noticed Complainant's deposition for August 12, 2016. On July 15, 2016, the parties filed a Joint Motion for Extension of Deadlines, noting that Complainant's representative had a medical condition that was temporarily preventing him from working. On July 18, 2016, the AJ issued an Order granting the joint motion, extending the close of discovery until October 7, 2016. On August 1 and September 7, 2016, the Agency contacted Complainant and his representative to ask about his availability for depositions, but Complainant and his representative did not respond. On September 16, 2016, the Agency issued an Amended Notice of Deposition for Complainant's deposition, which was to take place on October 7, 2016. On September 23, 2016, Complainant's representative told the Agency that the deposition needed to be rescheduled because he had committed himself to mediation in an unrelated case on October 7, 2016. On September 26, 2016, the Agency offered three dates prior to the scheduled close of discovery for Complainant's deposition. Complainant's representative responded, but he did not select one of the dates, and he proposed one of the three dates for deposing an Agency witness. On September 28, 2016, the Agency contacted the AJ and asked for assistance regarding Complainant's unwillingness to provide his availability for deposition. On September 28, 2016, Complainant's representative notified the AJ and the Agency that Complainant could not be deposed because he was on "mind numbing" medication and requested a 45-day extension of all deadlines in the case. On September 28, 2016, the AJ had a teleconference with the parties, extended the deadline for completion of discovery by 30 days, and issued an Order on Depositions that stated that Complainant's deposition would take place on November 2, 3, or 4, 2016. The Order on Deposition stated that Complainant's representative was required to immediately notify the Agency if Complainant was subsequently unable to attend his deposition due to medical issues and to make a good faith effort. On October 7, 2016, Complainant's representative told the Agency that he was available on any of the three dates in November. On October 13, 2016, the Agency issued a Second Amended Notice of Deposition, scheduling Complainant's deposition for November 3, 2016, at a location near Complainant's home in Virginia. On October 28, 2016, the Agency notified Complainant's representative to enter his travel plans into the Agency's system so he could be reimbursed for his travel expenses to and from the deposition. The Agency requested that Complainant's representative do so by October 31, 2016, and notify the Agency when he had completed the task. Complainant's representative did not respond, and there is no evidence that Complainant's representative entered his travel plans into the Agency's system for reimbursement. According to a sworn statement provided by the Agency, Complainant never notified his supervisor that he had a deposition on November 3, 2016, or requested leave for that date. On November 1, 2016, Complainant's representative emailed the Agency that Complainant had called out sick for part of the day but that he was "hoping that he will be able to be deposed on Thursday." On November 2, 2016, Complainant's representative notified the Agency that the deposition would have to be cancelled because Complainant's "medical condition" had not improved. Neither Complainant nor his representative provided the Agency with information regarding Complainant's medical condition, prognosis, or availability going forward for his deposition. On November 10, 2016, the Agency filed a Motion for Sanctions against Complainant for Failure to Present for Deposition. On November 21, 2016, Complainant filed a Response and Opposition to the Agency's Motion for Sanctions, requesting that the AJ set another deadline for a deposition and "order that the deposition be scheduled for several dates in case one falls through." Complainant attached an October 24, 2016, doctor's note, which states, "Patient has chronic conditions requiring chronic intermittent sedatives, which are medically necessary and medically potentially incapacitating for depositions and work, and the need for these medicines are unpredictable." On November 28, 2016, the AJ granted the Agency's Motion, dismissing Complainant's hearing request as a sanction. The AJ noted that the Agency had attempted to take Complainant's deposition over a five-month period and that he had extended the discovery period twice and found that Complainant was exhibiting a pattern of inappropriate delay. The AJ noted that Complainant failed to provide medical documentation to the Agency until responding to the Agency's Motion for Sanctions and stated that the doctor's note itself was extremely broad and did not establish that Complainant would ever be able to proceed with his deposition. The AJ also cited Complainant's failure to attempt to reschedule his deposition or offer alternative dates for his deposition. On November 30, 2016, Complainant requested reconsideration of the dismissal of his hearing request, estimating that there was a 50 percent chance that he would be incapacitated on any particular date. On December 12, 2016, the AJ denied Complainant's request for reconsideration, noting that Complainant's acknowledgement that there was a 50 percent chance he would be unable to attend a newly scheduled deposition did not lend support to his request for reconsideration. 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 Agency's decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged, finding that the Agency provided legitimate, nondiscriminatory reasons for not promoting him and that Complainant failed to establish that the proffered reasons were pretextual. The instant appeal followed. CONTENTIONS ON APPEAL Complainant's Contentions on Appeal On appeal, Complainant contends that the AJ wrongly dismissed his hearing request, punishing him because of his disability. According to Complainant, he and his representative kept the Agency informed of his medical condition, which is unpredictable. Complainant states that the AJ ignored Commission precedent for holding his hearing request in abeyance due to his medical condition. Complainant also argues that the Agency failed to timely issue a final decision "waiv[ing] its opportunity" to issue a final decision and that the matter should therefore be remanded to an AJ. According to Complainant, the Agency was required to issue its final decision within 40 days of the AJ's dismissal of his hearing request. Complainant notes that the final decision was issued 53 days after his request for reconsideration was denied and 67 days after the original dismissal of his hearing request. Finally, Complainant contends that he established that he was subjected to discrimination and retaliation. Complainant cites his own testimony as evidence that S1 and S2 had discriminatory and retaliatory animus towards him. Complainant argues that the Agency's legitimate, nondiscriminatory reasons for not promoting him were "blatantly false" because he received performance evaluations that indicated that he met expectations for his GS-12 position. Complainant also contends that the reference in S3's memorandum to his untimely case processing is "an explicit reference" to his disability. Agency's Contentions on Appeal In response to Complainant's appeal, the Agency contends that the AJ properly exercised his discretion in dismissing Complainant's hearing request. According to the Agency, Complainant's October 24, 2016, doctor's note was extremely broad and did not establish that he would be able to participate in a deposition at a future date. The Agency argues that the fact that his doctor issued the note weeks before his scheduled deposition, the fact that he failed to provide the note to the Agency, the fact that he did not request leave for the deposition date, and the fact that his representative did not enter his travel plans into the system for reimbursement demonstrated that Complainant had no intention of attending the deposition and a lack of good faith. The Agency argues that it timely issued its final decision within 60 days of the AJ's second remand order. According to the Agency, it had to wait for the AJ's order on Complainant's request for reconsideration before it could issue a final decision. On appeal, the Agency contends that Complainant's claim should be dismissed because his Actuary position's full performance level was really GS-12. The Agency provides evidence that in 2002 the full performance level for his position was mistakenly changed to GS-13.6 The Agency therefore contends that Complainant cannot establish a prima facie case of discrimination and that his claim should be dismissed. The Agency states that, assuming arguendo that the full performance level of Complainant's position was GS-13, he did not meet the criteria for a career ladder promotion because he did not demonstrate the ability to perform higher level duties. The Agency maintains that Complainant failed to establish that its legitimate, nondiscriminatory reasons for not promoting him were pretextual. 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 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"). As a preliminary matter, we address Complainant's contention on appeal that the Agency "waived" its opportunity to issue a final decision on the merits by failing to do so in a timely manner.7 We note that, under Commission regulations, the procedure for issuing a final order pursuant to 29 C.F.R. § 1614.110(a) is distinct from the procedure for issuing a final decision pursuant to 29 C.F.R. § 1614.110(b). When an AJ dismisses a Complainant's hearing request, the Agency has 60 calendar days from the receipt of the AJ's dismissal order to issue a final decision pursuant to 29 C.F.R. § 1614.110(b). We find that, because Complainant filed a request for reconsideration, the Agency's 60-day period in which to issue a final decision on the merits began on the date it received the AJ's second dismissal order. Therefore, the Agency's final decision was timely. Dismissal of Complainant's Hearing Request as a Sanction The AJ dismissed Complainant's hearing request as a sanction for failing to comply with the AJ's orders regarding the discovery process. 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 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. Dep't of Transportation, EEOC Appeal No. 01870232 (Mar. 4, 1988). As noted by Complainant, there is Commission precedent that cites EEO MD-110, which allows an AJ to hold a hearing request in abeyance due to a complainant's inability to participate in the hearing process due to a medical condition. See, e.g., Santiago v. Dep't of the Army, EEOC Appeal No. 0120121963 (June 12, 2012). However, in the instant case, the AJ dismissed Complainant's hearing request not because of his inability to participate in the hearing process due to his disability but because of his failure to show good cause for failing to comply with the AJ's orders concerning the discovery process. The AJ had already given Complainant significant leeway, extending the discovery period on two separate occasions based on requests from Complainant, but he ordered Complainant to immediately notify the Agency of any changes in his medical condition and to act in good faith. Complainant was on notice that failure to show good cause for failing to comply with the AJ's orders could result in sanctions against him. The AJ found that Complainant obtaining a vague doctor's note well in advance of the deposition date that specifically referenced his potential incapacitation for a deposition, combined with other factors, such as failing to provide the note to the Agency, failing to request leave for the deposition date, and failing to submit his representative's travel plans for reimbursement, showed that Complainant was not acting in good faith and had no intention to be deposed. The AJ further found that Complainant failed to establish good cause for failing to comply with his orders. Under the specific circumstances of this case, we do not find that it was an abuse of discretion for the AJ to dismiss Complainant's hearing request as a sanction. See Ruslin v. U.S. Postal Serv., EEOC Appeal No. 0120083745 (April 16, 2010) (affirming the dismissal of complainant's hearing request where complainant failed to show good cause for failing to appear at his deposition on two occasions). Denial of a Career Ladder Promotion Complainant alleged that he was subjected to discrimination when he was denied a career ladder promotion. 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's legitimate, nondiscriminatory reasons for denying Complainant a career ladder promotion were that he had performance issues, such as untimely case processing, and that he had failed to demonstrate proficiency with GS-13 work. Therefore, the burden shifts to Complainant to establish that the Agency's proffered reasons are pretextual. As evidence of pretext, Complainant cites his satisfactory performance reviews and states that any performance issues were attributable to his disability. However, the record indicates that S1 and S2 raised issues with Complainant's performance multiple times and cited potential areas for improvement even when giving him performance evaluations of "Meets Expectations." Moreover, with respect to Complainant's contention that any performance issues were attributable to his disability, this argument tends to lend credence to management's contention that Complainant did have performance issues and was performing below the GS-13 level. We find that the preponderance of the evidence in the record does not establish that the Agency's legitimate, nondiscriminatory reasons are a pretext designed to mask discrimination based on race, sex, color, age, disability, and/or reprisal. Therefore, Complainant has failed to establish that he was subjected to discrimination when he was not given a career ladder promotion. 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 August 2, 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 The Commission docketed this matter under two separate appeal numbers because the Agency erroneously issued a "final order" fully implementing the dismissal of Complainant's hearing request on January 17, 2017, using Agency No. 15-013-F. Subsequent correspondence from the Agency established that the correct Agency No. is 15-010-F for both its "final order" and its final decision. Accordingly, the Commission consolidates Appeal Nos. 0120171271 and 0120171272. 3 Complainant teleworked full time from his home in Virginia as a reasonable accommodation for his disability. 4 S2 retired during the EEO investigation and did not respond to the EEO Investigator's request that she complete a declaration. Report of Investigation (ROI) at 287-93. 5 According to a June 17, 2013, document in the record, Complainant was diagnosed "cervical spondylosis with multiple levels of spinal stenosis and deep vein thrombosis with a history of a recent pulmonary embolus," and his physician indicated that Complainant was substantially limited in the major life activities of sitting and lifting. ROI at 95. 6 The newly provided evidence appears to pre-date the Agency's final decision, but there is no indication that it was made part of the record, and the final decision does not reference it. We remind the parties that the Commission generally does not consider evidence provided for the first time on appeal. 7 When an Agency fails to timely issue a final decision in accordance with 29 C.F.R. § 1614.110(b), it does not "waive" the opportunity to issue a final decision on the merits. Instead, the Commission on appeal can consider whether to sanction the Agency for its delay. See Vunder v. U.S. Postal Serv., EEOC Appeal No. 01A55147 (May 12, 2006) (declining to sanction an agency that issued a final decision after more than 370 days). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120171271 11 0120171271, 0120171272