U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Gilbert B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 0720150008 Hearing No. 480-2012-00667X Agency No. 4F-967-0018-08 DECISION Simultaneously with its final order, on October 28, 2014, the Agency filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) which the Commission accepts pursuant to 29 C.F.R. § 1614.405(a). On appeal, the Agency requests that the EEOC affirm its rejection of the portion of the EEOC Administrative Judge's decision that sanctioned the Agency, awarding Complainant attorney's fees totaling $2,692.04. ISSUE PRESENTED The issue presented on appeal is whether the EEOC Administrative Judge (AJ) abused her discretion when she issued monetary sanctions against the Agency. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postmaster, EAS-22, at the Agency's Main Post Office in Barrigada, Guam. On May 8, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Chamorro Asian), national origin (Guam), disability (not specified), age, and reprisal for prior protected EEO activity when, on December 18, 2007, the Agency denied his request to extend his sick leave usage, and he was constructively discharged when he was told that he must retire in two weeks or he could face criminal prosecution and/or disciplinary action. Complainant had been under investigation by the Agency's Office of Inspector General for representing that he was on work status when he was actually on personal leave and traveling at various points from 2004 through 2007, totaling over 200 hours. In May 2007, Complainant offered to resolve the entire situation by voluntarily retiring and making monetary restitution for the work-hour pay he had inappropriately taken while on personal leave. In return, the Agency agreed not to press administrative or criminal charges against Complainant. The Agency processed Complainant's claim as a mixed-case complaint and completed its investigation on August 1, 2008.2 On July 30, 2009, the Agency issued a Final Agency Decision on his mixed case complaint, finding no discrimination, and advising him of his right to appeal to the Merit Systems Protection Board (MSPB). Complainant thereafter filed an appeal with the MSPB on September 1, 2009. On April 9, 2010, the MSPB issued a decision dismissing Complainant's appeal for lack of jurisdiction. Complainant thereafter requested a hearing before an EEOC AJ. 3 On February 11, 2014, the AJ issued a Notice of Assignment and Order, which instructed the parties that she had been assigned to the instant case. Therein, the AJ also scheduled a Telephonic Status/Settlement Conference for Thursday, March 6, 2014, and directed the parties to discuss settlement prior to the conference. The AJ ordered that any motion to reschedule the conference must be filed no later than five days from February 11, 2014. The AJ further wrote, in a footnote, that any proposed order for rescheduling of the conference should "include a certificate of service to each party and representative by fax . . . ." The AJ also warned that failure to follow this order or other orders might result in sanctions pursuant to 29 C.F.R. § 1614.109 (f)(3). On February 28, 2014, the AJ issued an order continuing the conference to 3:00 p.m. Pacific Standard Time (PST) March 7, 2014 (8:00 a.m., Saturday March 8, 2014, Guam time). The AJ's February 28, 2014, order further noted that any motion to reschedule the conference must be made within three days of the order, show good cause, and reflect the position of the other party. On March 1, 2014, the Agency's Counsel, through e-mail, discussed with Complainant's Counsel the possibility of filing a request to continue this latest scheduled conference. The parties also discussed alternative dates in March 2014 to which the conference could be rescheduled. Complainant's Counsel apparently assured the Agency that they would not opposed any timely filed motion to continue the conference. On March 5, 2014, the Agency's Counsel filed the motion titled, "Agency's Unopposed Motion to Continue the Status Conference." The Agency served the motion upon the AJ via first-class mail and facsimile. However, although the Agency served Complainant and his Counsel via first-class mail, it failed serve them through facsimile also. As a result, according to Complainant, as of March 7, 2014 (PST), Complainant's Counsel had not received the Agency's Motion to Continue. The conference was scheduled to occur on March 7, 2014, at 3:00 p.m. California time, which was 8:00 a.m. on Saturday, March 8, 2014, in Guam. At approximately 6:00 a.m. Guam time on Saturday, March 8, 2014, two hours before the start of the scheduled conference, the AJ e-mailed both parties to inform them that she would be granting the Agency's motion to continue the status conference. Unaware of the Agency's March 5, 2014, filing, Complainant and Complainant's Counsel met early in the morning in Guam for the conference only to find out that it had been rescheduled. Hours later, the AJ issued a subsequent order rescheduling the conference for Tuesday, March 11, 2014. AJ's March 7, 2014 Order to Show Cause In addition to rescheduling the Conference, the AJ simultaneously issued an Order to Show Cause (OSC) to the Agency as to why sanctions should not be imposed for failing to properly serve and/or notify Complainant of the Agency's Motion to Continue. In the OSC, the AJ specifically noted that the Agency's motion improperly represented that both parties had agreed to motion. The AJ noted that Complainant's Counsel informed her that they were unaware of the motion to continue, which resulted in Complainant's Counsel preparing for and attending the conference on Guam as scheduled. The AJ therefore ordered the Agency to: ... show cause no later than March 28, 2014, as to why it failed to provide notice to Complainant of the Agency's Unopposed Motion to Continue, and why it represented that the motion was unopposed and agreed to by Complainant if it had (sic) not. March 11, 2014, Status Conference and AJ's March 18, 2014, Order to Show Cause During the March 11, 2014, rescheduled Telephonic Status/Settlement Conference, Complainant believed that the Agency failed to counter his offer for a settlement in good faith. The Agency apparently would not discuss settlement with Complainant, believing that his requested amount was unreasonable. On March 18, 2014, the AJ issued the Agency with a second OSC for persisting in rejecting Complainant's offer for settlement and refusing to provide any counter offer because it "did not view Complainant's opening demand as reasonable." The AJ also instructed the Agency to now provide Complainant service through e-mail in addition to regular mail, given the fact that mail service from California to Guam was slower than normal mainland service. Agency's Response to the AJ's March 7, 2014, Order to Show Cause On March 27, 2014, the Agency filed its response to the AJ's first OSC. Therein, the Agency's Counsel argued that she was out of the office on unexpected leave with a throat infection at the time the Agency's March 5, 2014, motion was served. The Agency's Counsel asserted that, despite being out of the office, she emailed her assistant with a draft of the motion with the instruction to add the certificate of service and fax and mail the motion to the AJ and Complainant's Counsel. The Agency's Counsel indicated that, although Complainant and his Counsel were served via First-Class mail, they were inadvertently not also served through facsimile as she instructed her office assistant to do. The Agency's Counsel further alleged that, on March 11, 2014, during the Status/Settlement Conference, Complainant's Counsel admitted that they had agreed and did not oppose the March 5, 2014, motion to continue. Agency's Response to the AJ's March 18, 2014, Order to Show Cause On April 7, 2014, the Agency responded to the AJ's second OSC, which pertained to its alleged failure to engage in good faith settlement negotiations. Therein, the Agency asserted that the Commission has held that settlements are voluntary and cannot be imposed against an Agency. The Agency further contended, "It is highly prejudicial to force an agency into a settlement Conference with the Administrative Judge assigned to hear the case only to have that Judge try to pressure the agency into settling and then threaten to sanction the agency for its settlement posture." The Agency also stated: [I]t has been the long-standing policy of this office not to voluntarily participate in a settlement conference with the AJ who is assigned to adjudicate a case through hearing. Such an arrangement chills the opportunity for settlement as it inhibits the parties from openly discussing the merits of the case with someone other the Administrative Judge who will decide the case. The Agency also explained that it had engaged in good-faith settlement efforts with Complainant when it previously had agreed to allow him to voluntarily resign in lieu of pursuing administrative disciplinary action and possible criminal prosecution for his alleged misconduct. AJ's July 16, 2014, Order Sanctioning the Agency On July 16, 2014, the AJ issued an order sanctioning the Agency with respect to the first OSC. Therein, the AJ noted that she relied on the Agency's representation that the March 5, 2014, motion was unopposed and that Complainant and Complainant's Counsel were on notice that the motion had been filed. The AJ noted that the Agency refused to admit its error and improperly faulted an office assistant for not faxing the notice of the motion to Complainant. The AJ additionally noted that the Agency's Certificate of Service clearly listed Complainant and Complainant's Counsel's addresses in Guam, but inexplicability limited service to U.S. mail. The AJ noted that, given the late filing, the Agency should not only have faxed the late-filed motion, but also called and/or emailed Complainant's Counsel to ensure they were on notice of the motion. The AJ noted that the Agency also incorrectly argued that Complainant agreed to the March 5, 2014, motion. The AJ noted that Complainant and Complainant's Counsel appeared at the status conference, relying on the fact that the Agency never followed-up about the motion to continue. The AJ found that Complainant was prejudiced in having to needlessly appear at the conference, which resulted when the Agency failed to provide him notice of the late-filed motion. The AJ therefore ordered the Agency to pay Complainant a monetary sanction in an amount equal to Complainant's reasonable attorney's fees and costs related to the following: 1) Complainant's Reply to the Agency's Response to the OSC; 2) the appearance at the continued March 7, 2014, Status/Settlement Conference; and 3) the Petition for Reasonable Attorney's Fees and Costs. The AJ further instructed that, no later than July 30, 2014, Complainant should file with the Commission, and serve on the Agency, a Petition for Reasonable Attorney's Fees and Costs related to the above. AJ's July 29, 2014, Order Sanctioning the Agency On July 29, 2014, the AJ issued a second order sanctioning the Agency. Therein, the AJ noted that the Agency failed to discuss settlement proposals with Complainant during the March 11, 2014, Status/Settlement conference. The AJ stated that, after the Agency admitted that it did have a specific monetary amount in mind, she ordered the Agency to relay that amount to evaluate whether the Complainant would accept it. The AJ noted that the Agency nonetheless refused to provide a monetary counter offer of any amount. The AJ stated that the Agency's refusal to engage in ordered settlement discussions at the settlement conference hampered the "integrity and efficiency" of the administrative process. The AJ further stated that the Agency's strong opposition to the merits of Complainant's case and its position that Complainant's opening settlement demand was unreasonable were not sufficient justifications for its failure to provide a counter offer. The AJ noted that the Commission's regulations allow AJ's to conduct settlement conferences, and that an AJ may issue sanctions for parties' conduct during settlement where appropriate. Similar to the first sanction order, the AJ ordered the Agency to pay Complainant a monetary sanction in an amount equal to Complainant's reasonable attorney's fees and costs for the following: 1) the Reply to Agency's Response to the OSC; 2) the appearance at the Status/Settlement Conference; and 3) the Petition for Reasonable Attorney's Fees and Costs. The AJ further instructed that no later than August 6, 2014, Complainant should file with the Commission, and serve on the Agency, a Petition for Reasonable Attorney's Fees and Costs related to the above. Complainant thereafter filed his verified Petition for Reasonable Attorney's Fees and Costs. AJ's September 24, 2014, Decision Without a Hearing The AJ then, over Complainant's objections, granted the Agency's May 19, 2014, Motion for a Decision without a Hearing and issued a decision on September 24, 2014, finding no discrimination. Nevertheless, the AJ awarded Complainant's Counsel $2,692.04 in attorney's fees in connection with her July 16, and July 29, 2014, Orders sanctioning the Agency. The AJ noted that Complainant requested to be reimbursed $6,894.96 for attorney's fees for 28.15 hours for the services of two different attorneys (13.7 hours for Attorney 1 and 14.45 hours for Attorney 2). The AJ, however, reduced the hours billed by over half, to 11.175 hours. The AJ noted that there was no showing that the complexity or difficulty of the case required two attorneys. She concluded that the rates billed by the attorneys of $250 and $220 per hour were the reasonable hourly rate for that geographical area. The AJ also noted that Complainant's Counsel's billing statement contained duplicate and excessive entries, and further declined to award costs of $26.80. The AJ concluded that awarding Complainant's Counsel a total of $2,692.04 in attorney's fees was an appropriate amount.4 CONTENTIONS ON APPEAL On appeal, the Agency maintains that the AJ improperly sanctioned it for failing to fax to Complainant and his Counsel a courtesy copy of its motion to continue the relevant scheduled Status/Settlement Conference. The Agency asserts that the AJ mistakenly scheduled the Conference for a Saturday morning, Guam time. The Agency argues that it properly served the motion to Complainant and his Counsel by U.S. Mail, and that it did not engage in bad faith with respect to its actions. The Agency argues that the sanction was inappropriate, given that there was no finding of discrimination. The Agency additionally argues that the AJ wrongly sanctioned it a second time for declining to provide an oral counter offer to Complainant's $257,000 settlement demand, which it found to be an excessive amount. The Agency maintains the sanctions ordered by the AJ are unjust and inherently inconsistent with Commission policy and case authority. The Agency asks that the Commission overturn and deny the AJ's Sanctions Orders, and affirm its final order declining to implement the relevant portion of the AJ's decision that levied the sanctions. Complainant did not file any statement or brief in opposition to the Agency's appeal of the imposed sanctions. ANALYSIS AND FINDINGS Monetary Sanctions The Commission has exercised its inherent authority to enforce its Part 1614 Regulations by affording AJs broad authority to conduct hearings, and thereby impose monetary sanctions. 29 C.F.R. § 1614.109 et seq.; EEOC Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Chap. 7, at § III.D (Aug. 5, 2015). This broad authority includes the powers of AJs to conduct a hearing and develop the administrative record, which includes overseeing discovery; ordering supplemental investigation; and holding a hearing. 29 C.F.R. § 1614.109 et seq.; EEO MD-110, Chap. 7, at § III.D; Rountree v. Dep't of the Treasury, EEOC Appeal No. 07A00015 (July 17, 2001); Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). The parties are required to abide by the orders and requests of the AJ to provide the investigative file, documents, records, comparative data, statistics, affidavits, and attendance of witnesses. EEO MD-110, Chap. 7, at § III.A. Noncompliance, without good cause shown, can result in sanctions against the non-complying party. 29 C.F.R. § 1614.109(f)(3); see also EEO MD-110, Chap. 7, § III.B; Rountree, supra; DaCosta v. Dep't of Education, EEOC Appeal No. 01995992 (Feb. 25, 2000). Where a party refuses to comply, an AJ may: (1) draw an adverse inference in favor of the non-complying party; (2) consider the missing information to be favorable to the non-complying party; (3) provide a summary disposition in favor of the non-complying party on some or all of the issues without a hearing; (4) exclude other evidence offered by the offending party; (5) take other action deemed appropriate, e.g., order payment of attorney's fees and costs and expenses by the non-complying party. Id. Monetary sanctions, including attorney's fees and costs, may be awarded to a complainant even if he or she does not prevail on the underlying discrimination claim. For example, in Stull v. Department of Justice, EEOC Appeal No. 01941582 (June 15, 1995), the Commission affirmed an AJ's award of attorney's fees as a sanction for the agency's failure to produce documents in response to a discovery order. The Commission noted that it was irrelevant that the complainant did not prevail on his Title VII complaint because, "unlike the situation where attorney's fees are awarded pursuant to 29 C.F.R. § 1614.501(e) to a complainant who prevails on the merits, 29 C.F.R. § 1614.109[(f)](3) pertaining to sanctions for non-compliance in discovery contains no such 'prevailing' requirement." More recently, in Complainant v. Department of Commerce, EEOC Appeal No. 0720140016 (February 7, 2014), the Commission found that the AJ properly ordered the agency to pay attorney's fees and costs, related to a dispute involving depositions, to a complainant who did not prevail on his Title VII and ADEA claims. Therein, we reiterated that 29 C.F.R. § 1614.109(f)(3) authorizes an AJ to impose attorney's fees and costs as sanctions and "does not require a complainant to prevail on the merits in order for an AJ to issue sanctions." See also Waller v. Dep't of Transportation, EEOC Appeal No. 0720030069 (May 25, 2007) (affirming AJ order that agency pay attorney's fees and costs incurred in preparation of motion for sanctions to complainant who did not prevail on her Title VII and Equal Pay Act claim), req. for recon. denied, EEOC Request No. 0520070689 (Feb. 26, 2009); Fitch v. Dep't of the Navy, EEOC Appeal No. 01A03071 (Aug. 15, 2002) (agency must comply with AJ order to pay attorney's fees associated with motion to compel to complainant who did not prevail on Title VII and ADEA claim). Finally, AJs possess the authority to order a party to pay attorney's fees and costs to prevent a party's misconduct in the future; they must tailor their orders to each situation to respond to the party's failure to show good cause for its actions, as well as to equitably remedy the opposing party. See Barbour v. U.S. Postal Serv., EEOC Appeal 07A30133 (June 16, 2005); Harris v. U.S. Postal Serv., EEOC Appeal No. 07A30039 (Sep. 1, 2005); Rountree, supra; Hale, supra. By contrast, imposition of excessive attorney's fees and costs, where a lesser sanction would be more appropriate, may constitute an abuse of discretion. Id.; Cole v. Dep't of the Navy, EEOC Appeal No. 01A42577 (Feb. 16, 2005); Timerman v. U.S. Postal Serv., EEOC Appeal No. 07A20094 (Feb. 3, 2004). AJ's First Order Sanctioning the Agency On February 11, 2014, the AJ issued a Notice of Assignment and Order that scheduled a Telephonic Status/Settlement Conference for Thursday March 6, 2014. Therein, the AJ specifically instructed the parties that any proposed order for rescheduling of the Conference should "include a certificate of service to each party and representative by fax . . . ." On February 28, 2014, the AJ issued an Order continuing the Status/Settlement Conference to 3:00pm Pacific Standard Time (PST) March 7, 2014 (8:00 a.m., Saturday March 8, 2014, Guam time). The AJ's February 28, 2014, order further noted that any motion to reschedule the Telephonic Status/Settlement conference must be made within three days of the order, show good cause, and reflect the position of the other party (emphasis added). Not following the AJ's instructions, Agency's Counsel filed its motion to continue on March 5, 2014, five days after the Order and only two days before the March 7, 2014, conference was scheduled to take place. Although the conference was scheduled to take place in just two days, the Agency nevertheless served Complainant solely through regular mail, even though it was aware that both Complainant and Complainant's Counsel resided in Guam. Notwithstanding the Agency's arguments, the AJ's February 11, 2014, Order clearly instructed that service done through facsimile as well as mail. We note that the Agency's Counsel never attempted to e-mail or place a telephone call to Complainant's Counsel in Guam even though the Conference was scheduled to take place only two days after the Agency's motion was filed. There is no dispute that Complainant and Complainant's Counsel resided in Guam, while the Agency's Counsel worked out of California. The Agency was surely aware that its mail to Guam would not reach its destination in such time so as to provide Complainant notice of the schedule change. As a result, Complainant and Complainant's Counsel appeared on Saturday, March 8, 2014, 8:00 a.m. Guam time, prepared for the conference, which unbeknownst to them had been rescheduled. Although the Agency's Counsel says she was ill at the time of service and places the blame on an assistant for the failure to fax the Motion, we note that a showing that the noncomplying party acted in bad faith is not required. See Cornell v. Dep't of Veterans Affairs, EEOC Appeal No. 01974476 (Nov. 24, 1998); see also Mirabal v. Dep't of the Army, EEOC Appeal No. 0720120007 (Nov. 9, 2012) (AJ's order issuing monetary sanctions upheld when the agency experienced video teleconferencing technical difficulties during a hearing). As such, we find that the AJ properly exercised her discretion, and acted consistently with Commission regulations, EEO MD-110, and Commission precedent in ordering the Agency to pay attorney's fees incurred in connection with not providing service and/or notice of its March 5, 2014, motion to continue to Complainant. We find that the AJ instructed the Agency that service must be by facsimile as well as mail, and warned the Agency that failure to comply with her orders could result in sanctions. The record reflects that because of the Agency's failure to properly notify and/or serve Complainant of the motion to continue, Complainant incurred attorney's fees. We find that the AJ appropriately tailored sanctions regarding the Agency's failure here, and applied the least sanction necessary to respond to the Agency's failure to show good cause for its actions, and equitably remedied Complainant. The Commission further finds that the AJ's decision to impose sanctions was not an abuse of discretion. AJ's Second Order Sanctioning the Agency We note that in her July 29, 2014, order sanctioning the Agency, the AJ found that the Agency's refusal to engage in the ordered settlement discussions at the settlement conference hampered the "integrity and efficiency" of the administrative process. However, the Agency asserts that the Commission has held that settlements are voluntary and cannot be imposed against an agency. We agree, and note that the Commission has long held that an agency's decision whether to offer to settle a complaint and, if so, what terms and conditions to include in an offer, are actions wholly within the discretion of the agency. See Pickard v. Dep't of the Air Force, EEOC Appeal No. 01940294 (Feb. 22, 1994); Tipton v U.S. Postal Serv., EEOC Petition No. 03910047 (Apr. 8, 1991) (citing Bergh v. Dep't of Transportation, 794 F.2d 1575 (Fed. Cir. 1986)). In her March 18, 2014, Order to Show Cause, the AJ detailed that Agency Counsel "refused to provide a counter offer of any kind or amount." According to the AJ, the Agency's Counsel claimed that Complainant's opening demand was "too unreasonable to counter" and that the Agency would not negotiate until Complainant lowered his opening demand. The Agency argues on appeal that it did appear at the settlement conference in good faith, with full settlement authority, and that it did engage in discussions with Complainant as to why it believed that Complainant's demand was unreasonable, given the misconduct in which he had engaged, for which it had agreed not to prosecute him, among other factors. The Agency argues that the AJ was attempting to compel it to make an offer it was not willing to put on the table. We find that the AJ's characterization of the Agency's actions as a failure to bargain in good faith was in error. However, the Agency argued in response to the AJ's second OSC that it has an overall policy of simply not participating in settlement discussions when the AJ to which the case is assigned is also presiding over the settlement conference. We note that in the AJ's March 18, 2014, Order to Show Cause, the AJ did not mention the Agency's purported policy not to participate in a settlement conference with an AJ who will later be the adjudicating AJ. In Complainant's April 11, 2014, Reply to the Agency's Responses to Orders to Show Cause, he noted that the "only reason" given by the Agency at the settlement conference for the refusal to negotiate was that Complainant's offer was "unreasonably high." Presumably, if the Agency had cited a policy of not negotiating in front of the adjudicating AJ at the settlement conference, the AJ might have been able to bring in a mediator or other AJ to conduct the settlement negotiations. But it was not until the Agency's April 7, 2014 Response to the second OSC that the Agency raised this particular objection. We take issue with the Agency's claimed overarching "long-standing policy ... of not voluntarily participat[ing] in a settlement conference with [an] AJ who is assigned to adjudicate a case through hearing." We note that Commission regulations expressly provide that the Administrative Judge may engage the parties in discussion aimed at reaching a settlement agreement or may allow the parties such time as they may need to discuss settlement. EEO MD-110, Chap. 7, at § III.D.14. Commission regulations further provide that settlement conferences may be conducted by an "Administrative Judge of record" in the case. EEOC Handbook for Administrative Judges, Ch. 3, § II (July 1, 2002); In addition, the Administrative Judge may impose sanctions where a party fails to appear or be prepared for a conference (for example, for status or settlement discussions). EEO MD-110, Chap. 7, at § III.D.14; see Adams v. U.S. Postal Serv., EEOC Appeal No. 01A42999 (Sept. 8, 2004) (sanction upheld when a party failed to attend a mandatory settlement conference). We further note that Title VII of the Civil Rights Act of 1964 expressly encourages the settlement of employment discrimination disputes without litigation. Courts have consistently encouraged the settlement of discrimination claims and have upheld those settlements when challenged. EEO MD-110, Chap. 12, at § II (citing Occidental Life Insurance Co. v. Equal Employment Opportunity Comm., 432 U.S. 355 (1977); Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). Further, Commission regulations encourage agencies to seek resolution of EEO complaints through settlement at any time during the administrative or judicial process. EEO MD-110, Chap. 12, at § I. We find that the Agency's "long-standing" policy, which the Agency cites in its April 7, 2014, response to the AJ's second OSC, to be in contravention of Title VII and the Commission's regulations. Although an Agency's decision whether to offer to settle a complaint is an action wholly within the discretion of the Agency, an AJ nevertheless has the authority to facilitate settlement discussions through the use of settlement conferences pursuant to the Commission's regulations. Consequently, given the AJ's broad authority to conduct hearings, we find that the AJ's decision to impose sanctions here was not an abuse of discretion. Additionally we find that the AJ carefully tailored the sanction to the Agency's actions, by confining it to the attorney's fees and costs incurred by Complainant in connection with the Agency's failure to notify him of the change in settlement conference day and time. As detailed above, the AJ carefully reviewed the attorney's fee petition and reduced the amount requested from $6,894.96 to $2,692.04. We affirm the AJ's award of this amount as a sanction for the Agency's actions. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we conclude that the AJ's decision to impose monetary sanctions against the Agency was not an abuse of discretion. We therefore REVERSE that part of the Agency's final order which did not implement the AJ's decision that imposed a sanction against the Agency. We REMAND the matter to the Agency for further processing in accordance with this decision and the ORDER below. ORDER Within one ninety (90) days of the date this decision becomes final, to the extent it has not already done so, the Agency is ordered to pay Complainant $2,692.04 in attorney's fees. The Agency is further directed to submit a report of compliance, as provided in the statement entitled "Implementation of the Commission's Decision." The report shall include supporting documentation verifying that the corrective action has been implemented. 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. If the 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 (M0815) 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, P.O. Box 77960, Washington, DC 20013. 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 (T0610) This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 18, 2016 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 In EEOC Appeal No. 0120083853 (December 24, 2008), request for reconsideration denied, EEOC Request No. 0520090299 (August 23, 2009), we reversed the Agency's decision dismissing Complainant's complaint for failure to cooperate. We noted that the Agency initially processed the complaint under case number 4F-967-0012-08. We also noted, however, that the Agency then additionally processed the accepted claim under the instant case number 4F-0967-0018-08, which apparently caused confusion. In Request No. 0520090299, we noted that Complainant's complaint was apparently separated into two, with non-mixed issues assigned 4F-967-0012-08 and mixed issues assigned 4F-967-0018-08. 3 When the MSPB denies jurisdiction in a mixed-case complaint, the Commission has held that there is little point in continuing to view the matter as a "mixed case" as defined by 29 C.F.R. § 1614.302(a). Thus, the instant case was considered a "non mixed" matter and processed accordingly. See Schmitt v. Dep't of Transportation, EEOC Appeal No. 01902126 (July 9, 1990); Phillips v. Dep't of the Army, EEOC Request No. 05900883 (Oct. 12, 1990); 29 C.F.R. § 1614.302(c)(2)(i) and (ii). 4 Although, as discussed infra, there were the Agency was the subject of two Orders to Show Cause for two separate acts on non-compliance with orders, the AJ awarded attorney's fees for services rendered by Complainant's Counsel on one occasion, to wit, appearance at the status/settlement conference which had been postponed. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0720150008 13 0720150008