EEOC reverses Administrative Judge twice in same case. Complainant filed an Equal Employment Opportunity (EEO) complaint alleging discrimination on the bases of sex (female-pregnancy) when upon management learning of her pregnancy she was removed from all duties and forced to use leave and encumber insurance debt. Following the initial investigation, Complainant filed a request for a hearing with the wrong EEOC office. Although filed in the wrong office, the Complainant’s cover letter explained that her duty location with the Military Sealift Command was in the area where she filed the request as opposed to the other side of the country. The Agency responded indicating that it “did not acquiesce in [Complainant’s] request to have the case heard in California”. The EEOC Los Angeles hearings unit issued a Notice of Transfer, transferring the case to the Charlotte, North Carolina. Ultimately the Administrative Judge (AJ) issued an “Order of Sanction and Dismissing Hearing Request” granting the Agency’s motion to dismiss.

The Complainant appealed and the Commission concluded that the prior AJ had erred in imposing sanctions against the Complainant, finding that the Complainant did not violate an order from the AJ; there was no evidence that the Agency was harmed by Complainant’s actions; and any delay resulted in harm to Complainant, not the Agency. The Commission reversed the AJ’s prior decision and remanded the matter back to the Charlotte hearings unit.

The same AJ was then again assigned to Complainant’s case. The AJ issued an order giving the parties a 90-day discovery period noting that discovery must be initiated on or before March 5, 2018 at 5 pm or the parties would be deemed to have waived the right to conduct discovery. On the deadline before 5:00 pm EST, both the Complainant and Agency submitted their discovery requests; however, at 4:56 pm, Complainant’s counsel emailed the AJ asking for clarification regarding the language of the AJ’s Order. The AJ responded writing that discovery requests were due at 5:00 pm. Complainant’s counsel responded stating she thought discovery only had to be initiated by 5:00 pm. Unaware that she had to serve all discovery requests by the deadline, Complainant’s counsel asked the AJ for a short extension and thereafter served all requests by 7:50 pm. Afterwards, the Agency objected to Complainant’s counsel’s requests and Complainant’s counsel filed a Motion to Compel. The AJ denied the motion, finding that Complainant’s discovery requests were untimely filed. Subsequently the AJ issued judgment in favor of the Agency stating that even though Complainant may have contested management’s reason for removing her from ship assignments, she failed to present any evidence that disputed the fact that she was not fit for duty. The Agency issued the final order implementing the AJ’s decision, and Complainant appealed.

On appeal, the EEOC’s Office of Federal Operations (OFO) held that summary judgment in favor of the Agency was inappropriate when the AJ abused her discretion in denying Complainant’s Motion to Compel, and there were genuine issues of material fact concerning whether the Agency had a policy or practice of not accommodating pregnant worker while accommodating other categories of workers. The OFO reversed the Agency’s final order and remanded the case for further processing.

Jennifer K. v. Dep’t of the Navy, EEOC Appeal No. 2020001035 (May 20, 2021)