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EEOC finds no “extreme circumstances” to justify dismissing federal employee case. Complainant, a federal employee, filed an Equal Employment Opportunity (EEO) complaint alleging employment discrimination on the basis of race and sex. Specifically, he alleged discrimination when he was demoted from his Operational Supervisor position to a Technical Expert position. Following the initial investigation Complainant requested a hearing which was assigned to an Administrative Judge (AJ). The AJ issued an order laying out the procedures to follow for the hearing. After rescheduling the hearing once, Complainant failed to appear at the hearing, so the AJ issued a consolidated order directed Complainant to show cause and to appear for a telephone conference to reschedule the hearing. Following the conference the AJ issued a post initial scheduling conference order in which he noted that Complainant and his attorney were present, but no note was made as to whether either party showed good cause for the previous failure to appear. Subsequently the Complainant failed to respond to the Agency’s discovery requests, and ultimately the AJ issued an order dismissing Complainant’s hearing request for Complainant’s failure to respond to discovery requests. Complainant appealed.

On appeal, the EEOC’s Office of Federal Operations (OFO) looked at the appropriateness of dismissing Complainant’s hearing request. Noting that Complainant’s discovery responses could have been cured before the discovery period ended, and that the OFO could not independently assess the adequacy of Complainant’s responses to the Agency’s discovery requests because the requests and responses were missing from the record, the OFO held that dismissal of hearing requests is only appropriate in extreme circumstances. The OFO explained that there was no showing that Complainant willfully disobeyed the AJ’s orders or unjustifiably failed to respond to the orders and as a result the dismissal was inappropriate.

Edward W. v. Social Security Admin., EEOC Appeal No. 2019005957 (Apr. 15, 2021) https://www.eeoc.gov/sites/default/files/decisions/2021_08_31/2019005957.pdf

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