U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jennifer K., 1 Complainant, v. Sean J. Stackley, Acting Secretary, Department ofthe Navy Agency. Appeal No. 0120171630 Hearing No. 480-2016-00213X Agency No. DON-14-62381-03536 DECISION Complainant filed an appeal2 with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's April 7, 2017 final decision concerning her 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. BACKGROUND At the time of the events at issue, Complainant was a Second Officer working from the Agency's Military Sealift Command (MSC) in San Diego, California. 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 Complainant originally filed an appeal on February 28, 2017, prior to the Agency issuing its final decision, challenging the decision of an EEOC Administrative Judge to sanction her by cancelling her hearing and remanding the complaint to the Agency to issue a final decision on the record. When the Agency failed to issue its final decision within the regulatory time period, Complainant initiated the appeal. Complainant also refiled her appeal once the Agency issued its April 7, 2017 final decision. Under these circumstances, we accept the appeal as timely filed, but decline to impose sanctions on the Agency as requested by Complainant. On November 4, 2014, Complainant filed a formal EEO complaint alleging she had been discriminated against on the bases of sex (female - pregnancy) 3 when, upon management learning of her pregnancy, she was removed from all duties and forced to use leave and encumber insurance debt. The Agency accepted the complaint and conducted an investigation. Upon completion, the Agency provided Complainant with a report of the investigation and notification of her right to request a hearing before an EEOC Administrative Judge (AJ). The request for a hearing form provided by the Agency indicated that it should be filed with EEOC's Charlotte, North Carolina District Office. On May 26, 2015, Complainant, through her attorney, timely filed a request for a hearing with the EEOC's Los Angeles District Office. The cover letter accompanying the hearing request explained the reason for filing the hearing request with the Los Angeles office rather than Charlotte as directed by the Agency: My client's duty location with the Military Sealift Command (MSC) was (is) San Diego, California. My client, a Second Officer with the MSC, received all of her assignments from its San Diego offices until she became pregnant at which time she was taken out of the assignment pool. A copy of this letter was provided to Agency counsel. The Agency responded to Complainant's attorney by letter indicating that it did "not acquiesce in [Complainant's] request to have the case heard in California." In early September 2015, Complainant's attorney contacted EEOC's Los Angeles office by letter regarding the status of her request for a hearing. She expressed her objections to the Agency's position that the hearing should be held in Charlotte, indicating that Complainant's duty station was in California and she had filed her request with the EEOC office with jurisdiction over the geographic location in which the discrimination occurred. She requested that the Los Angeles hearings unit order the Agency to produce the complaint file, as more than three months had elapsed since she filed her hearing request. The Agency filed its objections to Complainant's position, indicating that although Complainant worked in California, her official duty station was in Norfolk, Virginia, and the "detailer and shore-side supervisor" responsible for her assignments, was located in Norfolk.4 3 The Pregnancy Discrimination Act of 1978 amended Title VII to indicate that the terms "because of sex" or "on the basis of sex" include pregnancy, childbirth and related medical conditions. 42 U.S.C. § 2000e(k). 4 EEOC's Charlotte, North Carolina District Office has jurisdiction over the Norfolk, Virginia area. On February 11, 2015, EEOC's Los Angeles hearings unit issued a Notice of Transfer, transferring the case to the Charlotte hearings unit. On July 22, 2016, more than one year after Complainant filed her request for a hearing and five months after the case was transferred to Charlotte, the Agency filed a motion for sanctions against Complainant for failure to file a timely a timely hearing request with the proper office. The Agency requested dismissal of the hearing request and a remand of the complaint to the Agency to issue a final decision on the investigative record. Complainant filed arguments in opposition. On December 20, 2016, following issuance of an order to show cause, the AJ in Charlotte issued an Order of Sanction and Dismissing Hearing Request" granting the Agency's motion. In the Order, the AJ dismissed Complainant's hearing request "as sanction for untimely filing and blatant disregard for proper jurisdictional filing." The complaint was remanded to the Agency for issuance of a final decision. On February 28, 2017, when the Agency had not yet issued its final decision, Complainant filed the instant appeal challenging the decision by the AJ to sanction her by cancelling her hearing and remanding the complaint to the Agency to issue a final decision on the record. As already noted, Complainant also refiled her appeal once the Agency issued its April 7, 20 17 final decision on the merits of her claim. ANALYSIS AND FINDINGS The Commission's regulations afford broad authority to its administrative judges for the conduct of hearings. See 29 C.F.R. § 1614.109 et seq.; Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110) at 7-10 (August 5, 2015). As part of this authority, an administrative judge has inherent powers to conduct a hearing and to issue appropriate sanctions. See Matheny v. Dep't of Justice, EEOC Request No. 05A30373 (April 21, 2005); Rountree v. Dep't of the Treasury, EEOC Appeal No. 07A00015 (July 13, 2001). Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Service, EEOC Appeal No. 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (September 25, 2009). Several factors are considered in tailoring a sanction and determining if a particular sanction is warranted: (1) the extent and nature of the non­ compliance, and the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice; and (4) the effect on the integrity of the EEO process. Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (March 1, 2007). Under the circumstances presented in this case, we conclude that the AJ erred in imposing any sanctions against Complainant. First, we find no evidence that Complainant or her legal counsel violated any order or directive of an EEOC AJ. Rather, Complainant timely filed her hearing request with the Los Angeles hearings unit and presented a colorable argument for why it was the appropriate location for the hearing as Complainant worked in San Diego when the alleged discrimination occurred and asserted that Agency officials in San Diego were, at least in part, responsible for the discrimination. Second, we find no evidence that the Agency was harmed by Complainant's actions. Complainant served the Agency with her request for a hearing and her arguments for why it should be in Los Angeles. The Agency was able to file a timely response to her arguments and present its views that Charlotte was the more appropriate venue. The Los Angeles hearings unit was persuaded by the Agency's arguments and transferred the case to Charlotte. Third, if the ensuing delays resulted in any harm in this case, it was to Complainant and not the Agency. We note that the Agency waited about five months after the case had been transferred to Charlotte to file its motion for sanctions. While Complainant's counsel continued to protest the transfer to Charlotte during some of this period, there is no indication that the Agency incurred any harm as a result or that there has been any demonstrated negative effect on the hearings process. Accordingly, we REVERSE the AJ's December 20, 2016 order sanctioning Complainant and dismissing her hearing request. The matter will be remanded for a hearing. As such, the Agency's April 7, 2017 final decision on the merits of Complainant's claims is hereby VACATED and the complaint is REMANDED to the Agency for further processing pursuant to the following Order. ORDER Within fifteen (15) calendar days of the date this decision is issued, the Agency shall submit a copy of this decision and the complaint file to the Hearings Unit of the EEOC's Charlotte District. 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. Thereafter, the Administrative Judge shall address the complaint on its merits in accordance with 29 C.P.R. 1614.109 and the Agency shall issue a final action in 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. Ifthe 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 (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-11 0), 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 (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 Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: arlton M. Hadden, Director · Office ofFederal Operations JUN 2 6 2017 Date