0120101707
06-28-2012
Derek W. Tomchek, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Derek W. Tomchek,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120101707
Hearing No. 440-2009-00146X
Agency No. 200P-0537-2008104307
DECISION
On March 10, 2010, Complainant filed an appeal from the Agency's February 5, 2010, final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Police Officer in the Agency's Police and Security Services in Chicago, Illinois. On September 25, 2008, Complainant filed an EEO complaint alleging that the Agency subjected him to a hostile work environment on the basis of his race (Caucasian) when:
1. on July 25, 2008, following an altercation between Complainant and a psychiatric patient, management instructed him to stay out of the main hospital and assigned him to work a desk job;
2. on July 26, 2008, management officials suspended Complainant's arrest authority;
3. on August 13, 2008, an Administrative Board of Investigation (ABI) board member asked Complainant why Complainant did not allow his African-American police partner to intervene in the situation with the psychiatric patient, who was also African-American, in order to avoid the altercation;
4. on August 15, 2008, management officials removed Complainant's weapon, badge, and credentials;
5. on August 19, 2008, the ABI board members compelled Complainant to answer personal questions; and
6. on August 21, 2008, Complainant received verbal notice of management's decision to terminate his employment.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing but the AJ, by Order dated October 20, 2009, dismissed the request with prejudice for failure to cooperate, failure to prosecute, and failure to follow orders. The AJ remanded the complaint to the Agency, and the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. On appeal, Complainant contends that the AJ erred in dismissing his request for a hearing.
ANALYSIS AND FINDINGS
The Commission must first address the AJ's decision to dismiss complainant's request for a hearing and remand the matter to the Agency. The Commission's regulations afford broad authority to AJs over the conduct of hearings, including the authority to sanction a party for failure without good cause shown to fully comply with an order. See 29 C.F.R. � 1614.109 et seq.; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 7-8 (Nov. 9, 1999). Where a party, inter alia, fails to respond to an order of an AJ, the AJ may, as appropriate, take action against the non-complying party pursuant to 29 C.F.R. � 1614.109(f)(3), i.e., an AJ may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the non-complying party; (2) consider the requested information to be established in favor of the opposing party; (3) exclude other evidence offered by the non-complying party; (4) issue a decision fully or partially in favor of the opposing party: or (5) take other action deemed appropriate. Before sanctions are imposed, the Commission requires that the AJ notify the parties of what sanctions or other actions may be imposed for failure to comply with the AJ's order. EEO-MD-110, at 7-6.
In his dismissal notice, the AJ indicated that Complainant failed to file timely prehearing submissions or otherwise follow orders. The AJ stated that on September 16, 2009, Complainant was ordered to show cause why sanctions should not be imposed, however the only response was a motion for an extension of discovery, filed on September 22, 2009, which was denied by the AJ. The Complainant had been advised that a failure to prosecute his case, file prehearing submissions, respond to dispositive motions, or follow the orders of the AJ could result in sanctions. The AJ noted that the Acknowledgment and Scheduling Order in the instant case was issued on May 18, 2009, however the only submission received from Complainant was his designation of representation. As a result, the AJ remanded the complaint to the Agency for a decision. On appeal, Complainant's counsel states that the sanction of dismissal with prejudice is "excessive and unwarranted" as there was no attempt to delay the proceedings or otherwise prejudice the Agency. The Commission finds that the imposition of a sanction in this case did not constitute an abuse of discretion given Complainant's failure to comply with the AJ's order. As the sanction of dismissing the hearing request was within the AJ's discretion, he properly remanded the case to the Agency to issue a decision on the record.
As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. � 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. � 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, � VI.A. (November 9, 1999) (explaining that the de novo standard of review "requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker," and that EEOC "review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission's own assessment of the record and its interpretation of the law").
Here, the record reflects that on July 25, 2008, Complainant and his partner were on patrol in the psychiatric unit when a patient became confrontational with Complainant and began using racial epithets such as "cracker" and "white boy". The record further shows that after instructing the patient several times to take a seat, Complainant and the patient engaged in a physical altercation with Complainant striking the patient twice which resulted in physical injuries to the patient. The incident was captured on surveillance camera and the footage, as well as statements from Complainant, and other witnesses, was reviewed by the ABI members. Complainant was questioned on two occasions by the ABI, and the board members provided affidavit testimony that the intention of the interviews was to determine whether or not excessive force had been used by Complainant and whether or not Complainant had other means at his disposal for dealing with the confrontation that would not have resulted in physical injury to the patient.
The record shows that the actions taken by management officials in response to the July 25, 2008, incident were in accordance with Agency policy and a review of the transcript of the ABI investigative interviews show that the question posed to Complainant regarding why he did not allow his partner to step in as a means of de-escalating the confrontation was one of a wide variety of questions about alternative methods Complainant might have employed for potentially handling the situation. Further, the ABI final report concluded that Complainant violated Agency police procedures by entering the psychiatric unit with a magazine still in his weapon, that there was "ample opportunity to de-escalate the situation and leave the locked ward", and that Complainant used inappropriate and excessive force. The report further recommended that appropriate disciplinary action be taken against Complainant. Report of Investigation, Exhibit C-9.
We find that Complainant has failed to proffer any persuasive evidence to show that the Agency's actions were motivated by discriminatory animus toward his race, or that the actions alleged had the purpose or effect of unreasonably interfering with his work performance and/or creating an intimidating, hostile, or offensive work environment. Accordingly, we find that Complainant failed to show he was subjected to unlawful harassment.
CONCLUSION
We AFFIRM the Agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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 (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 28, 2012
__________________
Date
2
0120101707
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101707