0120120963
06-21-2012
Wilfredo Santiago, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Wilfredo Santiago,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120120963
Hearing No. 420-2011-00157X
Agency No. ARREDSTON10AUG04090
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's November 30, 2011 final decision concerning an equal employment opportunity (EEO) complaint claiming 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Management and Program Analyst, GS-0343-12, at the Agency's Strategic and Concepts Directorate, Strategic Plans and Operations, Army Material Command in Redstone Arsenal, Alabama.
On October 7, 2010, Complainant a formal EEO complaint alleging that the Agency discriminated against him on the bases of race (Hispanic), national origin (Puerto Rico), disability and age (over 40) when:
he was not selected for the position of Strategic Planning Analyst, GS-0301-13, advertised under Vacancy Announcement Number NEAE 10097054; and was subjected to harassment and a hostile work environment by a Colonel.
At the conclusion of the investigation, Complainant was provided 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.
An AJ was assigned, and on June 23, 2011, the AJ acknowledged the hearing request and issued an "Order and Notice of Hearing" disallowing pre-hearing discovery and setting the case for a hearing on August 12, 2011.
On August 2, 2011, Complainant's attorney1 filed a Motion for Abeyance and/or Continuance of Hearing Date with the AJ. In the motion, Complainant's attorney represented that Complainant was not medically able to participate in the preparation of his case or participate in the August 12, 2011 hearing. Further, he indicated that Complainant had not been medically able to participate in his case since May 11, 2011. In support of the motion, Complainant submitted several statements from his physicians that indicated that he had been in severe pain since a fall on May 11, 2011, and was being diagnosed with a possible spinal cord compression. He was prescribed narcotic pain medication and muscle relaxers, and the doctors indicated that he had been unable to work since the May accident.
Complainant's attorney also represented that due to his medical condition and inability to go to work, Complainant had been unable to comply with the AJ's earlier order that he access or identify documents located at the workplace in order to disclose those documents not in the investigative record which supported his claims. The attorney requested that Complainant be afforded the opportunity to conduct reasonable discovery in furtherance of his claims.
On August 4, 2011, the AJ issued an Order on Motion for Abeyance and/or Continuance of Hearing Date denying Complainant's request to reset the August 12, 2011 hearing date because, notwithstanding his physical limitations, Complainant, through his former non-attorney representative, had earlier stated that he would be able to participate in the hearing. The AJ also found that Complainant had not demonstrated that additional discovery was necessary.
On August 8, 2011, Complainant's attorney submitted a Motion for Reconsideration Based on Medical Evidence, asking that the AJ reconsider the denial of their request to postpone the hearing date. In support, additional medical documentation was submitted, including an August 5, 2011 statement from Complainant's treating physician, who concluded that due to his present medical condition, Complainant's "ability to focus and concentrate is severely impaired" and requested that he be excused from his hearing date. Medical documentation also indicated that Complainant was still unable to go to work. Moreover, the attorney disputed the AJ's assertion that Complainant's previous non-attorney representative had stated that Complainant would be able to attend the hearing, noting that the representative specifically stated, "If his Medical provider consents, based on his medical, physical and mental status, [Complainant] should be able to participate in the hearing [emphasis added]." The attorney also represented that, as an officer of the court, it was clear to him after meeting with Complainant that he was in "such a severe medical state that he cannot meaningfully participate in a hearing scheduled this Friday, August 12th."
On August 10, 2011, the AJ issued a Remand for Final Agency Decision, dismissing Complainant's hearing request due to his inability to participate in the hearing process. Specifically, the AJ determined that, based on the submitted medical documentation, it was unknown when Complainant's condition would improve sufficiently to participate in the hearing process. Consequently, the AJ remanded the complaint to the Agency for issuance of a final decision based on the record gathered during the investigation.
On November 30, 2011 the Agency issued the instant final decision pursuant to 29 C.F.R. � 1614.110(b), finding Complainant had failed to prove discrimination. The instant appeal from Complainant followed.
On appeal, Complainant, through his attorney, argues that when he "simply asked for a continuance of his hearing date due to illness at that time, the AJ unilaterally cancelled the hearing and sent the case back to the Agency for a Final Agency Decision, though the Complainant never requested or desired anything other than a reasonable continuance of the hearing date due to illness [emphasis in its original]." Complainant argues that as this was the first setting of the hearing and an early setting - only 49 days after the issuance of the Scheduling Order - a continuance of the hearing would have caused no undue delay or resulted in any prejudice to the Agency. On the other hand, Complainant argued that denying his motion for a continuance and summarily cancelling the hearing and sending the case back to the Agency for a decision on the record "incurably prejudiced the Complainant."
Complainant further argues that the AJ erred in limiting his development of evidence in preparing his case by denying discovery noting that EEOC's Management Directive (MD)-110 provides for discovery and that it is "the Commission's policy that the parties are entitled, pursuant to 29 C.F.R. � 1614.109(b), to the reasonable development of evidence on the issues raised in the complaint."
ANALYSIS AND FINDINGS
According to EEOC's MD-110, Chapter 7, Section III(D)(16), "[a]n Administrative Judge may hold a hearing in abeyance in the event that a party is unable to proceed with the hearing for reasons such as illness, military assignment, or for other good cause shown." In this case, Complainant presented adequate evidence in the form of documentation from his physicians that he was medically unable to adequately participate in the preparation of his case and in the hearing set for August 2011. As such, Complainant provided good cause for his request for a continuance of the hearing.
While the AJ correctly pointed out that no predictions had been provided for when Complainant would adequately recover to participate in a hearing, we find that the AJ's immediate cancellation of any hearing and the remand to the Agency for a decision on the record was premature. As the hearing was scheduled to occur only 49 days after Complainant's hearing request was acknowledged, this was not a case where undue delay would have resulted if the AJ had been willing to postpone the hearing for a reasonable length of time to allow Complainant's medical condition to improve. We note that there was no evidence that the Agency's case would have been prejudiced by a reasonable delay. We therefore conclude that the AJ abused his discretion by summarily and prematurely dismissing the case from the hearing process rather than granting a reasonable continuance subject to re-evaluation if Complainant was still unable to participate. Accordingly, we are remanding the complaint back to reinstate Complainant's hearing request. Upon receipt of the case, the AJ should allow Complainant's attorney reasonable time to submit a motion justifying his request for permission to conduct discovery and should promptly rule on that motion.
Accordingly, the Agency's November 30, 2011 final decision finding no discrimination is VACATED, and the complaint is REMANDED for further processing in accordance with the Order below.
ORDER
The Agency shall submit to the Hearings Unit of the EEOC's Birmingham District Office a request for a hearing, as well as the complaint file, within thirty (30) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the complaint file has been transmitted to the Hearings Unit of the Birmingham District Office. Thereafter, the Administrative Judge shall issue a decision on the complaint in accordance with 29 C.F.R. � 1614.109, and the Agency shall issue a final action in accordance with 29 C.F.R. � 1614.110.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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, 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
June 21, 2012
__________________
Date
1 Complainant was initially represented by a non-attorney representative. By August 2011, he had secured the services of an attorney.
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Office of Federal Operations
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Washington, DC 20013
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