EEOC Appeal 2020000142

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Barbara C., 1
Complainant,
v.
Sonny Perdue,
Secretary,
Department of Agriculture
(Forest Service),
Agency.
Appeal No. 2020000142
Hearing No. 550-2019-00230X
Agency No. FS-2018-00595
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s August 12, 2019 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.
BACKGROUND
During the period at issue, Complainant was seeking to be appointed as an Administratively
Determined Forest Service employee.
On August 3, 2018, Complainant filed a formal EEO complaint alleging that the Agency
discriminated against her in reprisal for prior protected EEO activity (most recent EEO activity,
October 31, 2012). The Agency accepted Complainant’s complaint for investigation and
determined that it was comprised of the following claim: on March 21, 2018, Complainant’s
requests to update her fire qualifications and to be hosted as an Administratively Determined
employee were refused.
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.

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After an investigation, the Agency provided Complainant with a copy of the report of investigation
and notice of her right to request a hearing before an Equal Employment Opportunity Commission
Administrative Judge (AJ).
Complainant requested a hearing. However, on May 28, 2019, the AJ issued a sua sponte
Notice/Order of Intent to Consider Issuance of Decision Without a Hearing. 	Therein, the AJ
notified the parties that he found that the record appeared appropriate for summary judgment. The
AJ ordered Complainant to respond to the Notice within 15 days.
The record is devoid of evidence that Complainant filed a response.
On June 20, 2019, the AJ, without making a decision on the merits of Complainant’s claim,
remanded the complaint to the Agency and ordered it to issue a final decision pursuant to 29 C.F.R.
§ 1614.110(b). The AJ based the remand sanction on Complainant’s failure to respond to his May
28, 2019 Notice/Order.
On August 12, 2019, the Agency issued a final decision concluding that Complainant failed to
prove that the Agency subjected her to unlawful retaliation as alleged. The Agency found that even
if Complainant established a prima facie case retaliation, the responsible management officials
provided legitimate, non-discriminatory reasons for the disputed actions which Complainant failed
to establish were pretext masking retaliatory animus.
The instant appeal followed.
ANALYSIS AND FINDINGS
Here, the AJ’s May 28, 2019 Order notified Complainant of the AJ’s intent to issue a decision by
summary judgment, but first provided Complainant with an opportunity to respond. In pertinent
part, the Order stated:
Complainant is afforded 15 days to respond to this Notice and Order. As such, any
response must be received by me no later than 15 days following receipt of this
Notice and Order. If Complainant does not respond in writing to this Notice and
Order, proffering evidence of the existence of material facts in dispute and serving
such response on the respondent agency, I will issue a decision on the merits
granting summary judgment to the agency or return the case to the agency for
issuance of a final agency decision…
There is no evidence that Complainant responded to the AJ’s May 28, 2019 Notice/Order.
However, we are unable to ascertain based on the record before us if the AJ’s Notice/Order was
mailed to Complainant’s proper address. 	We note that the AJ’s Notice/Order was mailed to an
address different than the address Complainant listed in her formal complaint and on pre-complaint

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documents. The Agency also used a different address for Complainant than the AJ used in his
Notice/Order to transmit its final decision. In addition, we do not have in the record before us a
copy of Complainant’s hearing request. Thus, we do not know if Complainant listed on her hearing
request the same address used by the AJ in transmitting his Notice/Order.
Assuming arguendo that the AJ mailed his Notice/Order to the address Complainant listed on her
hearing request, we will examine the propriety of the AJ’s decision to sanction Complainant for
her lack of response by dismissing her hearing request and remanding the complaint to the Agency
to issue a final decision.
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). Such sanctions may 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, or other actions, as appropriate. Id.
The Commission has held repeatedly that sanctions must be tailored to each situation, applying
the least severe sanction necessary to respond to the party's failure to show good cause for its
actions, as well as to equitably remedy the opposing party. 	See Gray v. Dep't of Def., EEOC
Appeal No. 07A50030 (Mar. 1, 2007); Rountree v. Dep't of the Treasury, EEOC Appeal No.
07A00015 (July 13, 2001); Hale v. Dep't of Justice, EEOC Appeal No. 01A03341 (Dec. 8, 2000).
The Commission’s interest lies in deterring the underlying conduct of the non-complying party,
protecting its administrative process from abuse by either party, and ensuring compliance with its
regulations. See Royal v. Dep't of Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25,
2009). The factors pertinent to “tailoring” a sanction, or determining whether a sanction is, in fact,
warranted, include the following: (1) the extent and nature of the non-compliance, including 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, if any; and (4) the
effect on the integrity of the EEO process. Id.; see also Gray, EEOC Appeal No. 07A50030;
Vovsest v. Soc. Sec. Admin., EEOC Appeal No. 01A35340 (Jan. 18, 2005).
In this case, we find that the sanction imposed by the AJ was too harsh and a lesser sanction would
serve the purpose of deterring similar conduct in the future. The AJ should have tailored the
sanction to what was lost by the failure of Complainant to timely respond to the AJ’s May 28,
2019 Notice/Order. In doing so, the AJ should have proceeded with issuing a decision on the merits
of the complaint by summary judgment in light of a lack of written opposition from Complainant.
Accordingly, we VACATE the Agency’s final decision and REMAND this matter to the EEOC
AJ in accordance with our ORDER below.

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ORDER
Within 15 calendar days of the date this decision is issued, the Agency shall submit a renewed
request for a hearing, a copy of this appellate decision, and the complaint file to the Hearings Unit
of the EEOC’s San Francisco District Office. 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 issue a decision 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 (K0719)
Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. 	Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to the
Complainant and his/her representative.
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. 	Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 	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 agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. §
1614.403(g). 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

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which you work. Filing a civil action will terminate the administrative processing of your
complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:
____________________________ 	Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations
August 31, 2020
Date