U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 In the Matter of Arnold T.,1 Respondent Appeal No. 1120160001 Hearing Nos. 560-2014-00105X and 560-2015-00151X Department of the Treasury Agency Nos. IRS-13-0442-F, IRS-13-0577-F, IRS-14-0220-F, IRS-14-0226-F, IRS-14-0433-F(P), and IRS-14-0620-F(S) DECISION On December 2, 2015, an Equal Employment Opportunity Commission (EEOC) Administrative Judge (AJ1) certified to the Office of Federal Operations (OFO) her Order to Show Cause why Respondent should not be sanctioned with exclusion from the present matter and one-year suspension from representational activity in any EEO complaint not presently before the EEOC or its hearing units. This certification is accepted pursuant to EEOC Management Directive for 29 C.F.R. Part 1614 (MD-110), Chapter 7, Section V.B.2. (August 5, 2015). ISSUES PRESENTED The issue presented is whether Respondent's conduct as some representative warrants imposing sanctions of excluding Respondent from representing Complainant in the current case, and suspending Respondent for one year from serving as a representative in any federal-sector case not presently pending before the EEOC or one of its field hearing units. BACKGROUND Respondent was the non-attorney representative for Complainant in Complainant v. Department of the Treasury, EEOC Hearing Nos. 560-2015-00105X and 560-2015-00151X; Agency Nos. IRS-13-0442-F, IRS-13-0577-F, IRS-14-0220-F, IRS-14-0226-F, IRS-14-0433-F(P), and IRS-14-0620-F(S). In a June 10, 2015, e-mail to the Agency attorney, Respondent stated that he planned to depose 14 Agency employees during the week of June 22-26, 2015, and that he would provide deposition notices. The Agency attorney responded with a June 16, 2015, e-mail and attached letter. She stated that "we" were not available on June 22; that, based on witness availability, June 24-26 between 8:30 a.m. and 5:00 p.m. were the best dates; that three of the witnesses were not available at certain dates and times; that she was awaiting responses from three other witnesses (W1, W2, and W3), and that the Agency could not compel one of the witnesses to attend a deposition because the individual had retired. Noting that two of the witnesses' duty posts were outside of the area, the Agency attorney stated that they would participate by telephone. She requested that the depositions be held at the Agency's Kansas City Campus facility and asked Respondent to let her know if that location was acceptable. In both the e-mail and letter, the Agency attorney stated, "Due to my pregnancy, please copy my manager . . . on any future email correspondence." The Agency attorney provided the name and e-mail address of her manager. Respondent replied, "I refer to and incorporate by reference my previous e-mails concerning your arrogance, confusion, and imagine [sic] control over the deposition process." On June 17, 2015, the Agency attorney informed Respondent that W1 would not be available during the week of June 22, 2015. Respondent asked about W1's availability for the following week. The Agency attorney replied that W1 was available at certain times on July 1. In addition, she noted that she had received the deposition notices, reiterated that the Agency could not compel the retired individual to attend a deposition, stated that Respondent would need to reschedule depositions that were scheduled for 5:00 p.m. and 5:30 p.m., and asked Respondent to reschedule the deposition of a witness who was not available after 3:15 p.m. The Agency attorney also noted that she and one of the witnesses (W4) would participate by telephone and asked for a dial-in number. Further, noting that the address where the court reporting service told her the depositions would take place was different from the address listed in the notices, the Agency attorney asked Respondent to clarify the location of the depositions. She stated that she would be out of the office on June 18 and 19, 2015, and asked Respondent to copy her manager on future e-mails. In reply, Respondent stated, "The notices are correct as of the time I sent them. If anything changes, I will let you know. Any decision you make based on your arrogance will result in your own liability or that of the agency." The Agency attorney sent Respondent a June 22, 2015, response and sent a copy of the response and e-mail trail to AJ1. She noted that Respondent's reply to her June 17 e-mail had not indicated a willingness to reschedule the depositions that were scheduled for after 5:00 p.m. on June 26 or to provide a dial-in telephone number. The Agency attorney stated that the Agency was not available and would not appear for depositions after 5:00 p.m. on June 26 and that "the Agency will not participate in the depositions" if she did not receive a telephone number by noon on June 24, 2015. She also stated that she had learned on June 22 that W2 was on leave, would not appear for the deposition that Respondent had scheduled, and should be available June 30 - July 2, 2015, between 8:30 a.m. and 3:30 p.m. Finally, the Agency attorney noted that one of the witnesses had not received the e-mail noticing the deposition because Respondent had misspelled the witness's name and that the Agency attorney had forwarded the notice to the witness. At 6:58 a.m. on June 23, 2015, AJ1 sent Respondent and the Agency attorney an e-mail stating, "This notice constitutes the ruling of [AJ1] regarding the pending discovery issue." AJ1 also stated, "To the extent the Agency has notified [Respondent] in advance of either the unavailability of individuals to be deposed on a particular day or at a particular time as requested by [Respondent], or that Agency counsel is unavailable at 5:00 p.m. or later for depositions, no depositions may be scheduled by [Respondent] for said days and times." AJ1 noted that parties have the right to conduct discovery but do not have the right to conduct depositions whenever they choose. AJ1 stated, "Any persistence on the part of [Respondent] to conduct depositions at times or dates that Agency counsel or agency employees are unavailable may result in the imposition of sanctions, up to and including the loss of the right to conduct said depositions." Respondent replied to the Agency attorney's June 22 e-mail on June 23, 2015, at 12:31 p.m. and sent a copy of his reply to AJ1. He stated that he "did not dispose [sic] the 'Agency' (officer of the agency)," that it was "irrelevant" whether the Agency attorney was available after 5:00 p.m., and that the Agency attorney's "request to reschedule is denied." Noting that the alleged discrimination occurred in Kansas City, Missouri, Respondent asserted that the depositions should occur in Kansas City. He stated, "You and [W4] can participate by telephone with yourselves; however, I properly noticed the deposition for Kansas City, Missouri." Respondent also stated that it was "unimportant" whether W2 was on leave because W2 had been "properly noticed." Respondent further stated, "It is your choice to direct all, some or none of the agency employees to attend their properly noticed dispositions [sic]. Equally it will be my decision to seek sanctions against the agency and sanctions against you for unprofessional and unethical conduct with the State Bar Association of Texas. So be it." On June 24, 2015, at 12:11 a.m., Respondent replied to AJ1's e-mail and sent copies of his reply to the Agency attorney and to the EEOC Supervisory AJ. He argued that it was "highly improper and prejudicial" for AJ1 to issue a ruling in the absence of a motion from the Agency. Noting that Complainant's shift began at 4:30 p.m., Respondent alleged that AJ1's "so-called ruling is day minded and based on prejudice against [Complainant] who works evenings/nights." He also alleged that, by "improperly threatening" to impose sanctions, AJ1 was retaliating against Complainant "based on [AJ1's] pattern and practice of being biased and prejudiced toward" Respondent. Stating that the Agency notified him of W2's unavailability after he had issued the deposition notices, Respondent asked whether AJ1 would threaten to sanction the Agency. Respondent asserted, "The big white perpetrator agency needs no passion of support from you in sitting on small African-American Victim [Complainant]. If you are incapable of being an impartial arbiter of [Complainant's] case then you should recuse yourself immediately." In a June 24, 2015, response to his e-mail, the Supervisory AJ noted that she had "repeatedly" instructed Respondent not to copy her on correspondence involving cases that were not assigned to her. She ordered Respondent "to cease and desist from sending [her] any correspondence where [she was] not the assigned administrative judge." Respondent replied that he had sent copies of e-mails to the Supervisory AJ "based on your so-called supervisory role over the other AJs." He denied that she had previously instructed him not to send copies to her and stated that he would "take this matter to superior levels." On June 24, 2015, at 1:28 p.m., the Agency attorney sent an e-mail to AJ1 and the Respondent stating that she had learned from the court reporting service that the depositions scheduled for June 25 and 26 had been cancelled. Accordingly, the Agency witnesses would not appear for depositions. The Agency attorney subsequently sent another June 24, 2015, e-mail to AJ1 and copied Respondent. In the e-mail, the Agency attorney alleged that Respondent had engaged in "improper behavior while representing" Complainant in this and other matters before the EEOC. She stated that, during an April 28-30, 2015, hearing on a different matter (EEOC Hearing No. 560-2013-00239X), Respondent had referred to her by her maiden name and had mispronounced the name. According to the Agency attorney, she asked Respondent to use her married name but he refused to do so and continued to mispronounce her maiden name. She noted that Respondent continued to refer to her by her maiden name in subsequent communications. In addition, the Agency attorney stated that, in another matter (EEOC Hearing No. 560-2014-00359X), Respondent replied to the Supervisory AJ's Order on the Agency's Motion to Dismiss by saying, "The reality is that [the Supervisory AJ] has superiors and those superiors have superiors whom [sic] will have to answer to the Ultimate Superior." She also stated that, on January 29, 2015, Respondent noticed the depositions of four Agency employees for February 6, 2015. According to the Agency attorney, Respondent refused to give her copies of exhibits that he planned to use at the depositions and cancelled the depositions on February 5, less than 24 hours before they were scheduled to take place. With respect to the present matter, the Agency attorney noted that Respondent scheduled depositions for after 5:00 p.m., refused to reschedule them, and refused to provide a dial-in telephone number. She stated that Respondent notified her at 1:48 p.m. on June 24, 2015, less than 24 hours before they were scheduled to occur, that he had cancelled the depositions. The Agency attorney also stated that she "repeatedly" asked Respondent to copy her manger on all correspondence because she was eight-months pregnant and that he refused to do so. In a June 30, 2015, Notice and Order, AJ1 described the e-mail communications in this case, noted that Respondent had not copied the Agency attorney's manager on any of the e-mails, and found that a review of Respondent's conduct in other cases before the EEOC's St. Louis District Office demonstrated Respondent's "continued persistence in engaging in unprofessional, insulting, and disrespectful behavior toward" the Supervisory AJ, another AJ (AJ2), and the Agency attorney. Noting that Respondent argued in his June 24, 2015, e-mail that AJ1 improperly issued a ruling without having received a motion from the Agency, AJ1 stated that an AJ has "the discretion and duty . . . to intervene, without the necessity of a formal motion, when either party to litigation is engaging in abusive, uncooperative behavior that is disrupting and delaying the processing of the case." In addition, AJ1 quoted an exchange in which Respondent argued with AJ2 about the due dates for closing arguments in EEOC Hearing No. 560-2013-00239X. When AJ2 explained why she granted the Agency representative's request for an extension of time, Respondent repeatedly complained about AJ2 allowing the extra time and accused AJ2 of being biased. AJ1 cited the following examples of contumacious conduct: 1. refusing to provide the Agency attorney with a dial-in telephone number to enable the attorney to participate in depositions telephonically; 2. refusing to call the Agency attorney by her legal, married name; 3. refusing to provide the Agency attorney with the exhibits that he planned to use in depositions scheduled in EEOC Hearing No. 560-2014-00359X; 4. refusing to copy the Agency attorney's manager on e-mails; 5. threatening to file a complaint against the Agency attorney with the State Bar Association of Texas; 6. repeatedly criticizing, challenging, and demanding explanations from AJ1 regarding her Orders and Directives; 7. disrespectfully calling AJ1 prejudiced, biased, and retaliatory by rudely stating in an e-mail that "her so-called ruling is day minded based on prejudice," that AJ1 was retaliating against Complainant through Respondent, and that "[t]his posture will be challenged at every turn"; 8. disrespectfully stating in a June 24, 2015, e-mail to the Supervisory AJ that he had copied her on e-mails "based on [her] so-called supervisory role over other AJs"; 9. disrespectfully stating in a November 6, 2014, e-mail to the Supervisory AJ that "[t]he reality is that [the Supervisory AJ] has superiors and those superiors have superiors whom [sic] will have to answer to the Ultimate Superior"; 10. arguing with AJ2 in the hearing in EEOC Hearing No. 560-2013-00239X; and 11. scheduling depositions in the instant matter and in EEOC Hearing No. 560-2014-00359X, cancelling them at the last minute, and thereby "causing the agency to incur expenses and expend time in preparing unnecessarily for said depositions." AJ1 concluded that Respondent "has exhibited a continued pattern of misuse of the EEO process" and notified him that his persistence in engaging in "contumacious conduct will result in his exclusion as the representative of record in this matter, and may subject him to further sanctions including suspension and disqualification from further hearings in the Saint Louis District Office." In a July 8, 2015, e-mail that he sent to AJ1 and the Agency attorney, Respondent noted that he was filing Complainant's Motion to Compel Discovery. He requested confirmation of receipt of the e-mail. The Agency attorney replied that she had received the e-mail and again asked Respondent to copy her manager on e-mail correspondence "due to [the attorney's] late stage of pregnancy." On July 13, 2015, Respondent filed Complainant's Motion to Recuse. He asserted that AJ1's "personal bias, prejudice and retaliation" would deprive Complainant of a fair hearing. In addition, Respondent argued that the exclusion of a representative "as a rule applies to conduct occurring in the Administrative Judge's presence during teleconferences and the hearing." He also argued that a majority of the conduct cited in the Notice and Order did not involve AJ1, that there was no merit to the deposition-related complaints because he cancelled the depositions, that he never stated that he planned to use exhibits in the depositions for EEOC Hearing No. 560-2014-00359X, and that the complaint about his refusal to address the Agency attorney by her married name was "an example of nothingness."2 He maintained that the Agency attorney was the Agency's designated representative and that, if the Agency attorney's "purported pregnancy is causing her a disability which prevents her from performing her job duties," then the Agency could assign another representative. Further, Respondent contended that anyone has a right to file a complaint with a state bar association, that he has a duty "to be a persistent advocate for" Complainant, and that AJ1 was trying to abridge his freedom of expression. He alleged that the Supervisory AJ made "disparaging remarks to him in regards to his race" on "numerous occasions," and he asserted that the statement in his November 6, 2014, e-mail to the Supervisory AJ was factual rather than disrespectful. Respondent also asserted that the Agency attorney argued with AJ2 during the hearing in EEOC Hearing No. 560-2013-00239X and that AJ1 had no jurisdiction over the deposition matters that arose in EEOC Hearing No. 560-2014-00359X. He argued that AJ1 cannot be impartial and should recuse herself from this case. AJ1 issued an Order to Show Cause on November 2, 2015. Citing Commission precedent, she concluded that a sanction was appropriate in light of Respondent's "repeated and flagrant improper conduct." See Hooker v. Dep't of Veterans Affairs, EEOC Appeal No. 0120122165 (Aug. 27, 2013) (AJ properly dismissed hearing request where complainant's contumacious conduct included, among other things, demanding written explanations from AJ, telling AJ to "govern yourself accordingly," repeatedly asking supervisory AJ to remove the AJ from his cases, commenting on agency representative's age and referring to her by her first name after being told not to do so, filing complaint against agency representative with state bar association, filing criminal complaint against agency representative, and repeatedly copying supervisory AJ and EEOC Commissioners on e-mails after being told not to do so); Arredondo v. U.S. Postal Serv., EEOC Appeal No. 01A51491 (Mar. 31, 2006) (complainant's attorney engaged in contumacious conduct where motion accused AJ of ignoring regulation to "fit her excuse," shirking responsibility, and reaching corrupt and asinine conclusions; given that AJ did not warn attorney prior to issuing show-cause order, that the personal insults occurred in only one motion and were of moderate severity, and that there was no showing that the attorney refused to stop his misconduct, appropriate sanction would be denial of fees or costs associated with motion rather than disqualifying the attorney from representing complainant in the case); Burns v. U.S. Postal Serv., EEOC Appeal No. 01A52445 (Oct. 19, 2005) (complaint properly dismissed where complainant, who did not provide an affidavit during the investigation of his complaint, did not comply with AJ's order to respond to interrogatories and produce documents, accused AJ of being biased against him, and treated AJ in "disrespectful, degrading and insulting manner"); Barnes v. U.S. Postal Serv., EEOC Appeal No. 01991308 (Feb. 7, 2001) (forfeiture of right to a hearing, rather than dismissal of complaint, was appropriate sanction for complainant who repeatedly called AJ "lady," even after she asked him to stop; conduct was disrespectful to AJ but not threatening or profane). AJ1 stated that Respondent's assertion that conduct occurring outside of a teleconference or hearing cannot form the basis of a representative's exclusion underscored the need for a Show Cause Order, "largely because [Respondent] indicates no likelihood of correcting his misbehavior." In addition, she found that Respondent's conduct in other cases before the Saint Louis District Office was relevant to whether sanctions were appropriate, that a "plethora" of e-mails demonstrated his obstructionist behavior regarding depositions, and that he had "a pattern and practice of scheduling depositions with no real intention of conducting them." She also found that Respondent's continued refusal to use the Agency attorney's correct name is additional evidence of his inappropriate conduct. Further, AJ1 noted that Respondent's reference to the Agency attorney's "purported pregnancy . . . causing her a disability which prevents her from performing her job duties" was "insulting and unprofessional" and concluded that his refusal to copy the attorney's manager on e-mails was disruptive and unprofessional. She also noted that Respondent presented "no substantial allegations of misconduct warranting the filing of a bar complaint against" the Agency attorney. In addition, AJ1 stated that Respondent "appears to operate under the fundamental misunderstanding that he can behave as he chooses under the guise of 'vigorously representing' Complainant regardless of the impropriety or the resulting delays." She found that Respondent's references to her "so-called" rulings and his accusations of prejudice and bias constituted additional evidence of his disrespectful behavior. With respect to Respondent's pattern of disrespectful conduct toward the Supervisory AJ, AJ1 found that Respondent "persists in this line of conduct" in his Motion to Recuse. AJ1 ordered Respondent to show good cause why he should not be excluded from representing Complainant in the present case and "why he should not be suspended for a period of one year from serving as a representative in any federal sector EEO complaint not presently pending before the EEOC or one of its field hearings units." In so doing, AJ1 noted that Complainant's complaint was still in the discovery stage of the hearing process and that discovery would be stayed until Complainant had an opportunity to obtain a new representative who would act in her best interest. In his Response to the Order to Show Cause, Respondent asserted that the Order was retaliatory and that AJ1 should not have issued it before ruling on his Motion to Recuse. He reiterated his allegation that AJ1 exhibited a pattern and practice of bias against him and his clients. Respondent stated that he did not agree to take depositions by telephone and that AJ1 did not order him to do so. According to Respondent, "[t]he facility where the deposition was to take place did not have that capability" and Complainant did not agree to pay the costs for the capability. He claimed that the Agency attorney interfered with the deposition process by calling the court reporting service to inquire about billing, that the attorney learned of the change in location before he did, and that the attorney "used bullying, obstinate, dishonest and harassing tactics to resist appearing for the depositions." He also claimed that the Agency attorney used such tactics with respect to the depositions in EEOC Hearing No. 560-2014-00359X, that the attorney improperly asked the court reporting service for a dial-in telephone number, that Complainant canceled the depositions because of the attorney's "misconduct," and that he never stated that he would use exhibits in the depositions. In addition, Respondent claimed that the Agency attorney used her maiden and married names interchangeably. He denied that AJ2 directed him to refer to the Agency attorney by a particular name, and he asserted that the Agency attorney used her maiden name "in the letterhead of a letter . . . dated June 16, 2015 and all other letter[s] that [he has] received from her." Respondent submitted copies of a January 3, 2014, letter that the Agency attorney signed using her maiden name; an April 21, 2015, e-mail in which AJ2 addressed the attorney by her maiden name; and a June 22, 2015, e-mail that the Agency attorney signed by using her maiden name as a middle name and her married name as a last name. Respondent also submitted a copy of the first page of the June 16, 2015, letter that the Agency attorney sent to Respondent regarding the depositions in this case. A reference citation in the upper right-hand corner of the page contains several letters and the attorney's maiden name.3 Respondent argued that he used the word "purported" when referring to the Agency attorney's pregnancy because he had "no direct knowledge of her personal situation"; that he properly served correspondence on the Agency's designated representative; that the Agency was responsible for its own case management; and that the Agency attorney could have "auto forwarded" e-mails to her manager, asked someone to monitor her e-mails, or had the Agency reassign the case to someone else. Respondent further argued that the Agency attorney complained about him to AJ1 in reprisal for his threat to file a complaint with the State Bar Association. Respondent, who claimed that he "actually used the words, 'so-called orders,'" rather than "so-called rulings,"4 asserted that he did so "to denote something that is incorrectly termed or referred to." He stated that he did not believe that AJ1 had issued an order because it did not contain a title, caption, and signature. Respondent denied that he repeatedly criticized and challenged AJ1's orders. In addition, he alleged that AJ1 "has taken the posture that it is acceptable for agency representatives, other Administrative Judges or her to disrespect me, insult me, retaliat[e] against me, be rude to me, and even make disparaging comments to me about my race." Finally, Respondent argued that there is good cause why he should not be excluded from representing Complainant in the present case and should not be suspended from representing other complainants. He stated that Complainant chose him as her representative, that he had a duty "to be a persistent advocate," and that vigorous representation includes "challenging unjust orders and directives by AJs." Respondent also argued that the alleged misconduct did not warrant such severe sanctions. Noting that he represents Complainant in six cases before AJ1, Respondent asserted that the cases are "intertwined" and that a one-year suspension "would cause irreparable harm to" Complainant. He asked that Complainant's cases be reassigned from AJ1 to a different AJ. ANALYSIS AND FINDINGS Commission Regulation 29 C.F.R. § 1614.109(e) provides that an AJ may, upon reasonable notice and an opportunity to be heard, suspend or disqualify from representing complainants or agencies in EEOC hearings any representative who refuses to follow an AJ's order or otherwise engages in improper conduct. Further, "[a]ll participants in the EEO hearing process have a duty to maintain the decorum required for a fair and orderly proceeding and to obey orders of an Administrative Judge. Any person who engages in improper behavior or contumacious conduct . . . at any time subsequent to the docketing of a complaint for a hearing is subject to sanction." Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110), at Chap. 7, § V. (Aug. 5, 2015). The provisions of MD-110, Chapter 7, Section V, govern the exclusion and disqualification or suspension of representatives. Exclusion applies to the hearing process on the current case in which a representative is representing a complainant. Id. § V.A. Disqualification involves barring a representative from representing complainants or agencies in future EEOC hearings or all other actions taken by a representative in the course of an EEO proceeding, including the appeal. Id. § V.B. Disqualification is a more severe sanction than exclusion, and is used for repeated or flagrant improper conduct. Id. The general standard for exclusion of a representative is contumacious conduct, i.e., "willfully stubborn and disobedient" behavior. Id. § V.A.3. (quoting Black's Law Dictionary). Such conduct includes unprofessional or disrespectful behavior and degrading, insulting, or threatening remarks or conduct. Exclusion "generally applies to conduct occurring in the Administrative Judge's presence at any point during the hearing process, including prehearing proceedings and teleconferences as well as the hearing itself. It also applies to a representative's refusal to obey orders of the Administrative Judge." Although a pattern of behavior normally should manifest within a single case, the AJ may consider a representative's other improper conduct before that AJ, a different AJ, or the Commission. Id. § V.A. MD-110 further provides, "Sanctions should be proportional to the nature and degree of the improper conduct." When considering sanctions against a representative, an AJ "should be mindful that a party to the EEO process is entitled to be represented by an individual of that party's choice, and the representative is expected to be an advocate for the party's interests." At the same time, "all representatives also have a particular responsibility to respect the order and authority of the EEO process." Id. § V.A. When a representative "engages in repeated or flagrant improper conduct," the Commission may suspend or disqualify the representative from representing complainants. This applies "to conduct at the hearing stage of the case [and] also to all other actions taken by a representative in the course of an EEO proceeding, including the appeal. A disqualification applies to future representation of a party before the Commission, at both the hearing and appellate stages." Id. § V.B. Before disqualifying or suspending a representative, an AJ must give notice of the specific conduct that is the basis for the proposed disqualification, describe the proposed sanction, and give the representative an opportunity to be heard. The AJ may do this through a show-cause order. Where an AJ issues a show-cause order on why a representative should not be suspended or disqualified for improper conduct or refusal to follow orders at the hearing stage, the AJ should certify the matter to the Director, Office of Federal Operations (OFO), for a determination. Separately, or simultaneously, the AJ may issue an order excluding the representative from the hearing process in the matter at issue. MD-110 provides that "[a]n order suspending or disqualifying a representative from future hearings must specify the time period the penalty will be in effect, which must be commensurate with the severity of the conduct." Id. In this case, the procedural requirements have been met. AJ1 issued an Order to Show Cause that identified the proposed sanctions and the specific conduct giving rise to the proposed sanctions. Respondent had an opportunity to respond to the Order and submitted his response. AJ1 then certified the matter to the Office of Federal Operations. We agree with AJ1's finding that Respondent has engaged in contumacious conduct. As AJ1 noted, Respondent engaged in obstructionist behavior regarding depositions. On June 23, 2015, after AJ1 sent Respondent and the Agency attorney an e-mail expressly ruling that depositions may not be scheduled for the days and times when the attorney and witnesses were not available, Respondent sent an e-mail stating that the attorney's request to reschedule depositions was "denied." This was in direct contravention of AJ1's ruling. In addition, Respondent refused to provide a dial-in number to enable the Agency attorney and a witness to participate telephonically, and he rudely stated that they could "participate by telephone with" themselves. He has asserted that the facility for the depositions did not have teleconference capability and that Complainant did not want to pay the costs for the capability. Respondent, however, has not addressed whether or to what extent he would have incurred such costs if he had accepted the Agency attorney's offer to hold the depositions at the Agency's facility. Similarly, although Respondent has asserted that he never said that he planned to use exhibits in the depositions for EEOC Hearing No. 560-2014-00359X, he has not stated that he ever informed the Agency attorney that he did not plan to use exhibits. Moreover, Respondent cancelled the depositions in the present case and in EEOC Hearing No. 560-2014-00359X at the last minute. The record does not support his assertion that he cancelled depositions because of the Agency attorney's alleged misconduct. Instead, the record establishes that Respondent's conduct was defiant and unprofessional. Further, Respondent's insulting behavior reveals a fundamental lack of respect for Administrative Judges, the Agency attorney, and the EEO process. His references to AJ1's "so-called ruling" and the Supervisory AJ's "so-called supervisory role" demonstrate his disdain for the AJs' authority. Given that AJ1 expressly stated in her June 23, 2015, e-mail that "[t]his notice constitutes the ruling" on the pending matter, there is no merit to Respondent's apparent assertion that he did not need to obey the ruling because it did not contain a title, caption, and signature. As AJ1 noted, in light of Respondent's uncooperative, disruptive behavior, she had a duty to intervene in the deposition matter. Respondent also treated AJ2 disrespectfully when he argued with her in EEOC Hearing No. 560-2013-00239X. Respondent appears not to understand the difference between strong, effective advocacy and disrespectful, contumacious conduct. In addition, Respondent treated the Agency attorney with a lack of respect by repeatedly addressing her by her maiden name and refusing to copy her manager on e-mail correspondence. We agree with AJ1's conclusion that Respondent's reference to the attorney's "purported pregnancy . . . causing her a disability" was insulting and that his refusal to send e-mail copies to the manager was disruptive and unprofessional. Further, although Respondent denied that AJ2 directed him to use the Agency attorney's married name, he has not denied that the attorney asked him to do so during the April 28-30, 2015, hearing on EEOC Hearing No. 560-2013-00239X or that he repeatedly mispronounced her maiden name. Respondent continued to refer to the attorney by her maiden name even after AJ1 raised this matter in the Notice and Order. There is no merit to Respondent's assertion that the attorney used her maiden and married names interchangeably. The January 3, 2014, letter that the attorney signed using her maiden name predates the hearing on EEOC Hearing No. 560-2013-00239X; AJ2's April 21, 2015, e-mail also predates the hearing. Respondent submitted a copy of the first page of the June 16, 2015, letter that the attorney sent to him, but he did not submit the second page containing the attorney's signature. Although the reference citation on the first page contains the attorney's maiden name, the attorney signed the letter using her married name. Respondent's deceptive omission of the signature page demonstrates a lack of regard for the truth and is yet another example of his disrespect for the EEO process. To the extent that Respondent is trying to argue that a reference citation supersedes a signature, he is mistaken. Respondent likewise is mistaken to the extent that he believes that incidents that occurred before other AJs or in the context of other hearings are irrelevant. When determining the propriety of sanctions, an AJ may consider a representative's other improper conduct before that AJ, a different AJ, or the Commission. MD-110 at Chap. 7, § V.A.3. We note that Respondent has alleged that AJ1 was biased and prejudiced against him and that the Supervisory AJ made "disparaging remarks" about his race on "numerous occasions." Respondent has offered no evidence to support these allegations. He has not quoted or described the Supervisory AJ's alleged remarks, and he has not identified the dates or contexts of the alleged remarks. Similarly, Respondent has provided no examples of AJ1's alleged bias. The rulings with which Respondent disagrees do not constitute evidence of bias. There is no merit to Respondent's allegations. In view of the foregoing, we find that Respondent has engaged in a pattern of disruptive and willfully stubborn and disobedient behavior. Respondent, as a lay representative, may not be familiar with the rules governing attorney conduct. See, e.g., Model Rules of Professional Conduct r.3.5(d) (Am. Bar Ass'n 2015) (attorney shall not "engage in conduct intended to disrupt a tribunal"). Nonetheless, all representatives, non-attorneys as well as attorneys, "have a particular responsibility to respect the order and authority of the EEO process." MD-110 at Chap. 7, § V.A. Respondent has not done so. He has treated AJs with scorn rather than respect and has shown a general lack of regard for the EEO process. Respondent's repeated improper conduct--his defiance of AJ rulings, his unprofessional behavior toward AJs, his refusal to address the Agency representative by her legal name and to copy her manager on e-mail correspondence, his pattern of scheduling depositions only to cancel them at the last minute, and his apparent belief that he, rather than the AJ, controls the hearing process--is disruptive and unacceptable. This behavior, when viewed as a whole, constitutes contumacious conduct. In reaching this determination, we recognize a complainant's right to strong and effective advocacy as well as the hearing process's need for proper demeanor and appropriate behavior. A representative whose behavior is contumacious harms the client's case. Accordingly, we conclude that Respondent's repeated improper conduct warrants the imposition of sanctions. The sanctions must be "proportional to the nature and degree of the improper conduct." MD-110 at Chap. 7, § V.A. As noted above, an AJ may exclude a representative from participating in a hearing because of contumacious conduct. MD-110 at Chap. 7, § V.A.; see also Anderson v. Dep't of Housing and Urban Dev., EEOC Appeal No. 01A31409 (Jan. 23, 2004) (AJ properly cancelled hearing and remanded complaint to agency for decision without a hearing when complainant and her representative failed to comply with AJ's requests for information; decision noted that AJ also had excluded representative from participating in the case because of contumacious conduct); cf. Givens v. U.S. Postal Serv., EEOC Appeal No. 01841776 (Nov. 12, 1985) (complaints examiner, who excluded complainant's representative from hearing because of contumacious conduct, did not abuse discretion when he terminated hearing and remanded case to agency after complainant declined to continue without representative). We agree with AJ1's conclusion that Respondent has shown no likelihood of correcting his behavior and that exclusion is an appropriate sanction in this case. Although most of the conduct at issue here occurred in writing, rather than in the presence of an AJ, it was sufficiently improper and repetitive that exclusion is warranted. Through his conduct, Respondent has drawn the focus of the hearing process from his client's case to his inappropriate and unprofessional behavior. His conduct has harmed his client. Accordingly, we find that Respondent should be excluded from representing Complainant in the current case for the duration of the hearing process. We further find that disqualification/suspension also is an appropriate sanction. The Commission has upheld the disqualification of a representative for flagrant or repeated misconduct. See In the Matter of Sessoms, EEOC Appeal No. 1120060003 (Apr. 7, 2008) (representative disqualified/suspended for 120 days, expandable to 180 days for nonpayment of costs, where representative did not communicate with client for approximately four months; representative filed motions and pre-hearing report, participated in pre-hearing conference, and attended hearing without consulting client; and hearing had to be canceled because client did not appear); In the Matter of Szeredy, EEOC Appeal No. 11A60001 (June 22, 2006) (representative disqualified/suspended for 60 days, expandable to 90 days for nonpayment of costs, where representative did not appear at scheduled hearing, advised client not to appear, had not appeared at a hearing in another case, and had engaged in improper conduct in two additional cases). Respondent's defiant, obstructionist actions regarding depositions, recurring disrespectful conduct toward Administrative Judges, and repeated insulting behavior toward the Agency attorney warrant his disqualification/suspension. The length of the proposed disqualification/suspension must be commensurate with the nature and degree of Respondent's misconduct. MD-110 at Chap. 7, § V.B. Given the level and repetitiveness of the misconduct, and in the absence of any indication that Respondent will change his behavior in the near future,5 a significant disqualification/suspension is appropriate. We find that a suspension of 180 days, rather than one year, is appropriate in this case. A 180-day suspension is commensurate with the level of misconduct described in the Order to Show Cause and is sufficient time for Respondent to modify his behavior. Although we have reduced the length of the suspension, we caution Respondent that further disruptive, flagrant misconduct will result in additional sanctions, up to and including permanent disqualification. We strongly urge Respondent "to respect the order and authority of the EEO process." Id. at § V.A. To the extent that AJ1's Order applies to disqualification in representing complainants in new cases on appeal to the Office of Federal Operations, however, the sanction is not upheld. All of the cited misconduct occurred before a hearings unit. When improper representational conduct occurs during an appeal, OFO shall issue a show-cause order. MD-110 at Chap.7, § V.B.2. That has not been done here. See Sessoms, EEOC Appeal No. 1120060003 (sanction not upheld to extent that show-cause order applied to disqualification from representing parties in new cases on appeal). In summary, we find that Respondent should be excluded from representing Complainant in the current case for the duration of the hearing process. We further find that Respondent should be disqualified/suspended for a period of 180 days from serving as a representative during the EEOC hearings process in any federal sector EEO complaint not presently pending before one of EEOC's field hearings units. ORDER 1. As of the date this decision is issued, Respondent is excluded from representing the complainant in EEOC Hearing Nos. 560-2015-00105X and 560-2015-00151X during the hearing process. 2. As of the date this decision is issued, Respondent is disqualified/suspended for 180 days from serving as a representative during the EEOC hearings process in any federal sector EEO complaint not presently pending before one of EEOC's hearing units. 3. Within thirty (30) calendar days of the date this decision is issued, the EEOC's St. Louis District Office shall provide the EEOC's Office of Federal Operations with a list of hearings cases, if any, where Respondent currently (as of the date this decision is issued) is serving as a representative. 4. Within thirty (30) calendar days of the date this decision is issued, the United States Department of the Treasury shall provide a copy of this decision, with a brief cover letter describing it, to all Department of the Treasury complainants who have retained Respondent as a representative, to the extent that it can readily identify and locate the complainants. EEOC's St. Louis District Office shall enforce the Order, above, in its hearings unit. In any case not presently pending before an EEOC hearings unit where Respondent seeks to serve as a representative in any EEOC hearings unit, including the St. Louis District Office, during the disqualification period, the Agency shall notify the EEOC hearings unit of Respondent's disqualification by submitting a copy of this decision with a letter on the status of the disqualification. There is no further right of administrative appeal from this decision. FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations _4/30/18_________________ 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 the Certificate of Service at the end of his Motion, Respondent again referred to the Agency attorney by her maiden name. 3 The file in this matter contains the complete, two-page letter. The Agency attorney signed the letter using her first name, the first initial of her maiden name, and her married name. Respondent sent a copy of his Response to the Order to Show Cause to the Agency attorney's manager and stated in a footnote that AJ1 had informed him that the manager was acting in the attorney's place until the attorney returned from leave. 4 It is not clear why Respondent claimed that he used the phrase "so-called orders" when, in the next paragraph of his Response to the Order to Show Cause, he quoted a portion of his June 24, 2015, e-mail. The quote includes the following sentence: "Your so-called ruling is day minded and based on prejudice against [Complainant] who works evenings/nights." 5 We note that, on November 29, 2016, AJ2 issued an Order in a case in which Respondent is the complainant (EEOC Hearing No. 560-2016-00295X). The Order dismissed a hearing request and remanded the matter to the Agency for a final decision. According to the Order, Respondent refused to allow the attorney representing the Agency to participate in a deposition telephonically. Respondent did so even though AJ2 had issued a November 14, 2016, Order dismissing the Agency's Motion to Quash Depositions and denying Respondent's objections to the taking of depositions telephonically for witnesses outside the commuting area. On appeal, OFO upheld the dismissal of the hearing request and affirmed the Agency's final decision finding no discrimination. We concluded that, "clearly, no other sanction would seem to have any effect on modifying [Respondent's] behavior." Arnold T. v. Dep't of the Treasury, EEOC Appeal No. 0120171204 (July 13, 2017). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 1120160001 15 1120160001