0120113807
11-05-2012
Matt D. Fuller, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Matt D. Fuller,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120113807
Hearing No. 470-2010-00097X
Agency No. ARTACOM09JUN02428
DECISION
Complainant filed an appeal from the Agency's February 25, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Inventory Management Specialist, at the Integrated Logistics Supply Center in Warren, Michigan.
On July 21, 2009, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when (1) on or about May 19, 2009, a co-worker verbally assaulted and inconvenienced him; (2) in May 2009 another co-worker repeatedly threatened him, and his supervisor failed to diffuse the situation; (3) on October 7, 2009, his supervisor denied him union representation and demanded that Complainant sign an unknown document; (4) on September 24, 2009, Complainant was required to provide medical documentation for an absence of three consecutive days; (5) on September 1, 2009 Complainant was issued a notice of proposed suspension; (6) on December 3, 2009, as a result of receiving a reduced paycheck, Complainant became aware that his supervisor had suspended him from November 16-20, 2009; (7) on December 7, 2009, Complainant received a second notice of suspension from his supervisor, rescheduling his suspension of November 16-20, 2009, to an effective date of January 4, 2010; and (8) on January 6, 2010 Complainant was not provided a special rating by his supervisors, based on his reassignment on November 22, 2009.
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 denied the hearing request as a sanction when Complainant failed to show for the hearing. The AJ remanded the complaint to the Agency, and the Agency issued a decision pursuant to 29 C.F.R. � 1614.110(b). The decision affirmed the AJ's decision to dismiss the hearing. The decision did not address the merits of Complainant's claims.
In his appeal, filed August 4, 2011, Complainant requests that his late appeal be excused because he was sick and representing himself. In response, the Agency states Complainant had used only 21 days of sick leave during the time frame and as such was not incapacitated.
ANALYSIS AND FINDINGS
As an initial matter, an AJ has the authority to sanction either party for failure without good cause shown to fully comply with an order. 29 C.F.R. � 1614.109(f)(3). The sanctions available to an AJ for failure to provide requested relevant information include an adverse inference that the requested information would have reflected unfavorably on the party refusing to provide the requested information, exclusion of other evidence offered by the party refusing to provide the requested information, or issuance of a decision fully or partially in favor of the opposing party. See Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000). These sanctions must be tailored in each case to appropriately address the underlying conduct of the party being sanctioned. A sanction may be used to both deter the non-complying party from similar conduct in the future, as well as to equitably remedy the opposing party. If a lesser sanction would serve this purpose, an AJ may be abusing his or her discretion to impose a harsher sanction. Dismissal of a complaint by an AJ as a sanction is only appropriate in extreme circumstances, where the complainant has engaged in contumacious conduct, not simple negligence. See Thomas v. Dep't of Transportation, EEOC Appeal No. 01870232 (Mar. 4, 1988).
The Commission finds that the AJ properly sanctioned Complainant by removing his right to a hearing given that Complainant failed to show for the hearing. The AJ properly remanded the matter to the Agency for issuance of a decision.
In its decision, the Agency failed to address the merits of the Complainant's claims. Rather, it merely adopted the AJ's sanction of dismissing the request for the hearing. It should be noted that the AJ did not dismiss the complaint - only Complainant's right to a hearing was dismissed.
The Agency argues that Complainant's appeal is untimely. However, based on the unique facts of this case, the Commission determines that it is appropriate to reverse the Agency's dismissal and remand the complaint for issuance of a new final Agency decision addressing the merits of the complaint. 29 C.F.R. � 1614.604(c) provides that the time limitations provided for in the EEO complaint processing regulations are subject to waiver, estoppel and equitable tolling. Under this authority, we find that this is an appropriate case to excuse Complainant's failure to timely file his appeal given that the Agency has failed to issue a decision on the merits of his complaint to which he is entitled.
Accordingly the Agency's decision dismissing the complaint is REVERSED and the matter is remanded as set forth below.
ORDER
The Agency is ordered to take the following action:
I. Within 45 days of the date this decision becomes final, the Agency shall issue a new final Agency decision addressing the merits of Complainant's complaint.
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 (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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (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
November 5, 2012
__________________
Date
2
0120113807
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113807