0120110789
09-24-2013
Moses L. Coley, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Moses L. Coley,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120110789
Hearing No. 410-2009-00334X
Agency No. 9R1M09005
DECISION
On November 2, 2010, Complainant filed an appeal from the Agency's September 30, 2010, final order 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission VACATES the Agency's final order and REMANDS the complaint for an administrative hearing.
ISSUES PRESENTED
The issue presented is whether the Agency should be subject to sanctions for failing to comply with the Commission's Notice to Show Cause by submitting a complete copy of the complaint file as directed or provide good cause for why sanctions should not be imposed.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Fuels System Worker, WG-5413-08 in 78 Logistics Readiness Squadron at Warner Robins Air Force Base, in Georgia. On November 14, 2008, Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (African-American), age (53) , in reprisal for prior EEO activity when:
1. on September 25, 2008, he received a Notice of Decision to Suspend for 10 days because management wanted to discredit him so he would not be eligible for a vacant supervisory position which was open; and
2. on March 26, 2009, he received a Notice of Proposed Suspension.1
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 timely requested a hearing. The Agency filed a motion for a decision without a hearing. The AJ held oral arguments on March 17, 2010 and determined that a hearing was warranted. On June 10, 2010, the AJ held a hearing. The AJ issued a decision on September 8, 2010, finding that Complainant failed to demonstrate that he was discriminated against as alleged. The Agency subsequently issued a final order adopting the AJ's finding that Complainant failed to prove that the Agency subjected him to discrimination as alleged.
CONTENTIONS ON APPEAL
On appeal, Complainant requested that the Commission find that he was discriminated against as alleged. The Agency requested that we uphold the AJ's finding of no discrimination.
ANALYSIS AND FINDINGS
Upon receipt of Complainant's appeal, the Office of Federal Operations (OFO) sent the Agency a letter dated December 6, 2010, asking it to provide the Commission with the complete record pertaining to the complaint within 30 calendar days. See 29 C.F.R. � 1614.403. The Agency partially complied with this request. In October 2012, in a series of emails, OFO informed the Agency that the Commission was missing the hearing transcript. The Agency was provided directions on how to submit those documents to OFO. However, the Agency did not provide the transcripts.
On February 26, 2013, OFO issued a "Notice to Show Good Cause Why Sanctions Should Not Be Imposed" (Notice). The Notice ordered the Agency to submit the complete complaint file or provide good cause why it could not, through evidence and argument. The Notice emphasized that the following document was missing from the record: (1) the full transcript of the June 10, 2010 hearing.
The Notice further stated, in pertinent part, that:
The Agency is hereby notified that if it fails to submit the entire record in twenty (20) days or show good cause why it cannot do so, OFO may: (1) draw an adverse inference that the requested information would have reflected unfavorably on the Agency; (2) consider the matters to which the requested information pertains to be established in favor of the Complainant; (3) issue a decision fully or partially in favor of the Complainant; or (4) take such other action(s) as appropriate.
In its March 25, 2013 response, the Agency indicated that:
[It] timely submitted the complaint file containing all available documents pertaining to the above-referenced complaint on December 2, 2010. Due to oversight, miscommunication between the Agency and the EEOC Atlanta District Office, and circumstances beyond the Agency's control, the transcript for the June 10, 2010 EEOC hearing held at Robins Air Force Base, Georgia, was never received by the Agency. Also, it does not appear that the EEOC Administrative Judge (AJ) who conducted the hearing ever received the June 10, 2010, original transcript with two copies, that were contracted for by the Agency from an independent court reporter, who subsequently died. It is also our understanding that the complainant did not receive the June 10, 2010 transcripts. Therefore, the missing transcripts cannot be transmitted to the Commission.2
The Agency also provided, among other things, that "[w]e regret that the missing documents are not available. This is truly an anomaly, and to our knowledge, has never happened to the Agency."
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 7-3 (November 9, 1999) provides, in pertinent part, that "[t]he agency shall arrange and pay for a verbatim transcript (printed or typewritten) of the hearing proceedings pursuant to � 1614.109(h).3 Furthermore, "[t]he agency shall take any steps necessary to ensure that the transcript is provided as expeditiously as possible." Id. Thus, based on the Agency's failure to submit the hearing transcripts in this case, we find that the imposition of sanctions is warranted. See Vu v. Soc. Sec. Admin., EEOC Appeal No. 0120072632 (Jan. 20, 2011) (sanctions appropriate where the agency failed to provide the Commission with motions and responses in support and opposition to decision without a hearing).
Sanctions serve a dual purpose. On the one hand, they aim to deter the underlying conduct of the non-complying party and prevent similar misconduct in the future. Barbour v. U.S. Postal Serv., EEOC 07A30133 (June 16, 2005). On the other hand, they are corrective and provide equitable remedies to the opposing party. Given these dual purposes, sanctions must be tailored to each situation by applying the least severe sanction necessary to respond to a party's failure to show good cause for its actions and to equitably remedy the opposing party. Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009). Several factors are considered in "tailoring" a sanction and determining if a particular sanction is warranted: 1) the extent and nature of the non-compliance, and the justification presented by the non-complying party; 2) the prejudicial effect of the non-compliance on the opposing party; 3) the consequences resulting from the delay in justice; and 4) the effect on the integrity of the EEO process. Gray v. Dep't of Defense, EEOC Appeal No. 07A50030 (Mar. 1, 2007).
In the instant matter, the Commission notes the absence of the hearing record to include the hearing transcripts, which is the primary means by which the Commission could have determined whether the record supports the AJ's determination that Complainant failed to establish discrimination. Although we certainly understand and appreciate the Agency's predicament, the fact remains, however, that Complainant is prejudicially affected by the lack of the hearing transcript. Based on the foregoing, we find that, given the complete absence of the hearing record, the most appropriate sanction is to remand this matter back to the Agency so that it can request a new hearing.
CONCLUSION
Based on a thorough review of the record, the Commission VACATES the Agency's final order implementing the AJ's decision finding no discrimination, and REMANDS the matter to the Agency in accordance with the Order below.
ORDER
The Agency is directed to submit a copy of the complaint file to the Hearings Unit of the EEOC's Atlanta District Office within fifteen (15) 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. Thereafter, the Administrative Judge shall hold a hearing and 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, 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
__9/24/13________________
Date
1 It appears from the record that Complainant served both the 10 day suspension and a 14 day suspension and was not compensated for those days.
2 Although the court reporter did not transcribe the hearing that was held on June 10, 2010, she did transcribe the AJ's reading of her bench decision which occurred that same day. There is no explanation for why the proceedings that took place earlier that day were not also transcribed.
3 29 C.F.R. � 1614.109(h) provides that:
The hearing shall be recorded and the agency shall arrange and pay for verbatim transcripts. All documents submitted to, and accepted by, the administrative judge at the hearing shall be made part of the record of the hearing. If the agency submits a document that is accepted, it shall furnish a copy of the document to the complainant. If the complainant submits a document that is accepted, the administrative judge shall make the document available to the agency representative for reproduction.
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0120110789
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110789