Document 1?1 Filed 12/18/15 Page 16 of 56 US. EQUAL EMPLOYMENT OPPORTUNITY COMNIISSION Miami District Of?ce . Miami Tower 0? Haifa? - - 100 SE 2?d Street, Suite 1500 ?f Miami,FL 33131 -. T, . - Intake Information Group: (800) 669-4000 5 i - 201.5 Intake Information Group TTY: (800) 669-6820 Miami Status Line: (866) 408-8075 Miami Direct Dial: (305) 808-1740 '0 I TTY (305) 808-1742 FAX (305) 808-1855 Website: Edward J. Goodwin, EEOC No. 510-2015-00209x complama?t, . Agency No. v. 1611 C. Johnson, Patrick A. Kokenge Secretary, . Chief Administrative Judge DHS Transportation Security Administratlon, Agency. Date: June 30, 2015 ORDER ON MOTION FOR SANCTIONS The issue in this EEO complainant is whether: Complainant, the former Federal Security Director (F SD), at the Jacksonville International Airport, in Jacksonville, Florida, was subjected to discrimination based on his sex (male) and age (Y. DB. 1957) when on or about May 9, 2014, the Agency issued him a direct reassignment to Des Moines International Airport, in Des Moines, Iowa, while replacing him with a younger, female FSD, who has minimal or no prior ?eld experience. Complainant retired in lieu of having'to move. Findings of Facts1 On August 27, 2014, Complainant ?led a formal complaint of discrimination with the Agency?s Civil Rights Division. (Complainant?s Motion, Exhibit 1.) After clarifying Complainant?s legal theory in the complaint, on December 17, 2014, the Agency accepted the complaint.2 (Agency Response, Declaration of Roy Reese, Exhibit A, at 114; Complainant?s Motion, Exhibit 2.) The Agency explained in its acceptance letter that, ?due to an 1 These facts are almost entirely taken from the pleadings of the parties, as there appears to be no disputes about them, and the orders issued in this matter. 2 Based on the date Complainant ?led his formal complaint, the Agency accepted it 112 days a?er it was ?led. Page 1 of 12 Document 1-1 Filed 12/18/15 Page 17 Of 56 unusually high backlog of cases, there will be a delay in assigning [your] case for investigation.? (Complainant?s Motion, Exhibit 2 at 2). This backlog of cases resulted from a 30% increase in formal complaints during this ?scal year over last year, coupled with complaint staff being reduced to 40% of normal capacity. (Agency Response Exhibit A at 112.) TSA uses outside contractors to conduct investigations of formal EEO complaints. Because of the backlog, cases could not be assigned to outside contractors as expeditiously as ideal. (Id) Pursuant to 29 CPR. an agency must provide the complainant with a copy of the investigative ?le within 180 days from the ?ling date of the original complaint if the complaint is not amended. Thus, the Agency?s Report of Investigation or Investigative File in this case was due within 180 days of August 27, 2014, or by February 23, 2015. See, Agency?s Response. In early January 2015 Agency Case Manager, Linda Yao, requested a 90-day extension for the completion of the investigation, citing a backlog of formal. complaints and investigations. (Agency Response Exhibit A at Complainant?s Motion, Exhibit 3 at 1, 3.) Complainant rejected this request. (Complainant?s Motion, Exhibit 3 at 1.) Complainant?s counsel requested 45 additional days to return the materials requested by the Agency. (Motion, Exhibit 3 at The Agency granted Complainant?s requested extension. (Id. at 3.) The case was assigned to an outside contractor for investigation on January 27, 2015,3? before the 180?day deadline for the completion of the investigation. (Agency?s Response Exhibit A at On February 6, 2015, 163 days after Complainant ?led his formal complaint, the EEO Investigator contacted Complainant?s counsel. Complainant submitted his EEO af?davit on February 17, 2015. The 180th day from the date Complainant ?led his formal complaint was February 23, 2015. (Complainant?s Motion) On March 9, 2015, the Agency sent Complainant a letter stating that it had not completed its investigation into Complainant's formal complaint. Complainant?s Motion Exhibit 4. The Agency stated, "We expect that the investigation will be completed on or about May30, 2015," 276 days after Complainant ?led his formal complaint. (Agency?s Response Exhibit A at 1p: Complainant?s Motion Exhibit 4.) . On March 17, 2015 Complainant ?led a hearing request. On March 31, 2015, the EEOC issued an Order Directing the Agency to Produce Electronic Complaint File which provides in pertinen part: - 1. This case has been selected for testing as part of the Commission?s Hearings Electronic Case Processing System (HECAPS) Test Pilot. The 3 The case was assigned for investigation on the 152 day after Complainant ?led his formal complaint and 40 days after the formal complaint was accepted. Page 2 of 12 Document 1-1 Filed 12/18/15 Page 18 of 56 Agency is ordered, within the earlier of ?fteen (15) days from receipt of this Order or from receipt of Complainant's request for a hearing, to provide the undersigned an electronic copy of the Agency Investigation File, including a complete complaint ?le and the report of investigation, if any, for the above-referenced EEO complaint. The Agency shall also send a copy of the same Agency Investigation File to the Complainant, if it has not previously done so. 29 C.F.R. EEO MD-110, Chapter 7, Sections MI. The Agencp Investigation File. includin_g_a complete complaint tile and the report of investigation. must be forwarded even where there has been no investigation or there is an incomplete investigation. It the Agency cannot provide the Agency Investigation ile, including a complete complaint ?le and the report of investigation. within ?fteen (15) days, it must show good cause in writing to the Administrative Judge. It the Agency. [oils to provide the requested materials within fifteen (15; davs from the dpte of receipt of this Order or to show good case it has notdone so," the Administrative Judge who will be assigned to preside over thimgter mp}; require the Agency to bear the costs of the Complainant?s discovery, including attorney?s fees, or impose other sanctions as appropriate. 29 GER. 1614.109mf32; EEO MD-110, Chapter 7, Section (Emphasis Added). On April 10, 2015, the Agency ?led the administrative ?le with the EEOC. A form letter was used indicating that the Investigative File was being transmitted, when this was not the case, given that the investigation had not yet been completed. The letter should have stated that the I investigation was not yet completed, but was anticipated to be completed on May 30, 2015 and it would be forwarded at that time. (Agency?s Response Exhibit A at 114.) The Agency did not provide any of the investigative ?le as required by the Order Directing the Agency to Produce Electionic Complaint File or good cause why the investigation was not completed and provided within 15 days of the Commission?s Order. On April 15, 2015, NOTICE OF RECEIPT, ORDER TO FORWARD NOTICE TO AGENCY REPRESENTATIVE ANDORDER SCHEDULING INITIAL CONFERENCE was issued scheduling the Initial Conference in this matter for May 7, 2015. On April 20 and 22, 2015, the Agency ?led a motion to reschedule the Initial conference due to a scheduled vacation. Nothing in the motion mentioned anything about the late investigation. On April 22, 2015, Agency counsel learned that a sanctions motion had been ?led after receiving a copy of the administrative ?le delivered to the EEOC in response to the March 31 Order.5 The 4 This list of sanctions does include issuance of a decision in favor of a party. 5 The Agency took more than a month to inform its counsel of the Sanctions Motion and approximately a month to inform their counsel of the Commission?s Order. a Page 3 of 12? CASE Document 1-1 Filed 12/18/15 Page 19 of 56 Supplemental Motion was served on the Agency?s representative on April 29, 2015. The Agency was anticipating the investigation to be completed by May 30, 2015, which is 96 days after the ISO-day deadline. (Agency?s Response Exhibit A at 115.) On April 27, 2015, an Order Rescheduling the Initial Conference was issued, rescheduling the Initial Conference to May 26, 2015 at 10:30 am. The Agency ?led its Response/Opposition to Complainant?s Motion and Complainant?s Supplemental Motion on May 1, 2015. The Agency?s backlog in cases is not the primary reason for the Agency?s failure to ?nalize the investigation by the ISO-day deadline according to its Response. The Response provides that the investigation was slowed down by the nature of the instant claim. Complainant asserts that TSA senior executives have forced older, male FSDs to retire by transferring them to other airports. Af?davits are being obtained from senior executives of the Of?ce of Security Operations (OSO): Kelly Hoggan, Assistant Administrator of 080, and Art Meinke, Regional Director, Region 2 of OSO. Senior Executives of the Of?ce of Security Operations are responsible for managing the daily ?eld operations for a workforce of more than 50,000 employees at nearly 450 airports nationwide. An af?davit also was requested from Karen Shelton-Waters, Assistant Administrator for the TSA Of?ce Of Human Capital. Mr. Hoggan and Ms. Shelton?Waters are the highest-ranking of?cials in their respective organizations. Because of the prominent positions held by the Agency witnesses, it has taken longer for their af?davits to be completed and ?nalized. (Agency?s Response Exhibit A at 115.) Though scheduled and held, the Initial Conference was largely meaningless as the investigative ?le had not yet been provided and no one knew anything meaningful about the Complainant?s EEO complaint that would have permitted the Pre-Hearing conference to address any of the matters identi?ed in the NOTICE OF RECEIPT, ORDER TO FORWARD NOTICE TO AGENCY REPRESENTATIVE ANDORDER SCHEDULING INITLAL CONFERENCE. The investigative ?le was ultimately uploaded to the Commissions on May 29, 2015. On June 9, 2015 Complainant ?led his Second Supplemental Motion for Sanctions alleging that the investigation which was ?nally provided was inadequate because the explanation provided as to why Complainant was moved is not speci?c and the decisions maker(s) were not interviewed. The Agency ?led its Respone providing that discovery can address any shortcomings in the investigation and had the decisions maker(s) been interviewed, it would have taken longer to get the investigation completed. 6 The Commission possesses the authority to issue sanctions in the administrative process. It has been granted, through statute, the power to issue the non-discrimination provisions applicable to the federal sector. Waller v. Department of Transportation, EEOC Appeal No. 5 The Agency in this ReSponse and the others takes the position that no sanction is warranted in this case and that any sanction would be violative of the Federal Rules of Civil Procedure. It should be noted that the Federal Rules of Civil Procedure do not apply to these proceedings. Page 4 of 12 CASE Document 1-1 Filed 12/18/15 Page 20 of 56 0720030069, page 10 (May 25, 2007.); Matheny v. Department of Justice, EEOC Appeal No. 07A00045, page 6 (April 21, 2005). Pursuant to that authority, the Commission promulgated regulations ?rst in 29 CPR. Part 1613 and subsequently in 29 C.F.R. Part 1614. Within the administrative process, Administrative Judges have been granted powers designed to aid them in processing the cases on their docket. The effect of a party?s conduct on the integrity of the EEO process should not be underestimated when an Administrative Judge is determining what would be an appropriate sanction. Protecting the integrity of the 29 C.F.R. Part 1614 process is central to the Commission's ability to carry out its charge of eradicating discrimination in the federal sector7.? Royal v. Department of Veterans A?az?rs; Appeal No. 0520080052 (September 25, 2009. TheAgency contends that there are more equitable remedies than a default decision could be issued such as requiring that the investigation he completed by an earlier date or that the investigation could be conducted through discovery. Pursuant to Commission precedent, sanctions are corrective and tailored to each individual situation. The least severe sanction necessary should be applied. See Gray v. Dep ?t of Defense, EEOC N0. 07A50030, 2007 WL 715577, at *3 (March 1, 2007); Hale v. Dep ?t of Justice, EEOC No. 01A03341, 2000 WL 1868843, at (Dec. 8, 2000). While both of the Agency?s contentions are accurate in the general sense, because the Agency responded in early May to the Complainant?s Motion and the investigation was scheduled to be done by the end of May, and was, these alternative suggestions are not effective in this case.8 Even with the extra three (3) months the Agency unilaterally took in this case to investigate, the decision maker(s) were not interviewed which negatively affects the usefulness of the investigation. Additionally, to interview the top managers at the Agency, it seems even more time would be necessary. Consequently, the availability of the decision maker(s) in discovery would seem questionable based on their unavailability for the investigation. The Agency contends that because the Commission had not issued an Order for the investigative file that sanctions cannot be imposed for not providing it. In this case, Complainant ?led his Motion for Sanctions on the same day he ?led his request for a hearing. March 24, 2015. On March 31, 2015, the Commission issued its Order to Produce the ?le within ?fteen days or show good cause. The Agency?s response to that Order was due by April 15, 2015. By that date, the Agency had a Motion for Sanctions pending and had not complied with the Commission?s Order to Produce. The Agency?s Response to the Complainant?s Motion was not served until May 1, 2015. Interestingly, the Agency?s April 21, 2015 Motion to Reschedule the Initial Conference does not address the outstanding Motion or response to the Order to Produce. The Agency does mention the Commission?s Order to Produce in its Response to the 7 The issuance of an Order to Show Cause is not necessary when the party was previously placed on notice that sanctions could be imposed. See, Charlotte Council v. Department of Veterans Affairs, Appeal No. 0120080321 (April 9, 2010). 8 The Agency did not respond to the Complainant?s Motion in the usual time frame because the Motion served by mail was not served on Agency Counsel but the Agency?s Civil Rights Of?ce instead. Page 5 of 12 CASE Document 1-1 Filed 12/18/15 Page 21 Of 56 Complainant?s Motion, but the Agency has neVer responded to the Commission?s Order.9 By the time the Agency did respond to the Complainant?s Motion, the Commission?s Order to Produce had been issued more than a month earlier and it took almost another month for the Agency to provide the ?le. The Agency?s position seems to be that unless the Administrative Judge issue and Order threatening sanctions that sanctions cannot be issued even when a Motion for Sanctions is ?led by an opposing party. In this case, during the pendency of Complainant?s motions for sanctions, Orders were issued informing the Agency of possible sanctions and the Agency did not timely respond. The Agency was on notice of possible sanctions by Complainant?s motions, Orders issued and the Commission?s regulations at 29 CPR Part 1614. The Commission regulations provide that where a party, inter alia, fails to respond fully and in a timely fashion for records and documents or to respond to an order of an the may, as appropriate, take action against the non?complying party pursuant to 29 CPR. which includes issuing a decision fully in favor of the opposing party. Id. The Commission's regulations afford broad authority to A13 for the conduct of hearings. See 29 C.F.R. 1614.109 et seq.; Equal Employment Opportunity Management Directive for 29 CPR. Part 1614 (MD-110), Ch. 7, Sec. (November 9, 1999). An has inherent powers to conduct a hearing and to issue appropriate sanctions, including a default judgment. See id; Royal v. VA, EEOC Appeal No. 0720070045 (September 25, 2009); Matheny v. Department of Justice, EEOC Request No. 05A30373 (April 21, 2005); Rountree v. Department of the Treasury, EEOC Appeal No. 07A00015 (July 17, 2001). The Agency also raises the issue that it has taken a 60% reduction in staff and a 30% increase in cases. However, the Agency provides no information about the 60% percent staff reduction. It is unknown how or Why this occurred, the number of people this really represents, and the steps, if any, the Agency has taken to resolve the situation. "[T]he agency's internal situation regarding budgetary problems and backlogs of EEO complaints cannot be used as a defense for its failure to comply with the Commission's regulations." Lomax 12. Department of Veterans A?airs, EEOC Req. No. 0520080115 (Dec. 26, 2007). "Protecting the integrity of the 29 C.F.R. Part 1614 process is central to the Commission's ability to carry out its charge of eradicating discrimination in the federal sector." Royal, EEOC Req. No. 0520080052. When fashioning a sanction, the EEOC has identi?ed considerations guiding evaluation of appropriate sanctions as follows: ?[s]everal 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 justi?cation 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; (4) the effect on the integrity of the EEO process. Adkins v. FDIC, EEOC No. 0720080052, 2012 WL 169813, at *10 (Jan. 13, 2012). The Agency?s circumstances would clearly make it dif?cult to comply with the Commission?s regulations.' However, the case was not even assigned for investigation until the 152nd day which is well beyond the expected time frame. The prejudicial effect to Complainant is in this case at that time was minimal. The consequence of the delay of the investigation has 9 In the event that the Agency?s May 1, 2015 Response to the Complainant?s Motion can be considered a response to the Commission?s Order, the response is a couple of weeks late. Page 6 of 12 CASE Document 1-1 Filed 12/18/15 Page 22 Of 56 been to keep this EEO complaint from being able to move forWard in the hearings process as was scheduled. The Initial Conference was held but was meaningless because no one had the investigative ?le, including the Agency counsel. At the Initial Conference, the Agency counsel could not explain anything about the investigation other than that Friday. - DeSpite the pending motions and the Orders issued, the Agency was unable to provide any meaningful information about the investigation. This circumstance wasted everyone?s time and has taken time away from the processing of other cases at the hearings stage. The domino effect and affects the integrity of the EEO process. See Monies-Rodriguez v. Dep of Agric, EEOC App. No. 0120080282 (Jan. 12,2012). The Commission has also stated in Lomax that an may consider whether an extension to investigate was requested by the agency and denied by a complainant. Lomax v. Department of Veterans Affairs, EEOC Req. No. 0520080115 at *3 (Dec. 26, 2007). In this case, the Agency did request an extension in early January, which Complainant?s attorney denied, While asking for a 45?day extension to provide materials related to compensatory damages. The Agency granted Complainant?s request. Even had Complainant granted the 90 day extension, the Agency took more than the 90 extra days to complete its investigation, and the investigation is incomplete. In addition, the Agency?s arguments leave one wondering what actually occurred. The Agency told Complainant that they cannot complete the investigation timely due to a 60%10 reduction in staff and a 30% increase in cases. The Acceptance letter was not issued for approximately 3 months after the formal complaint was ?led because according to the Agency?s Response the issue needed to be clari?ed. There are no indicia that Complainant or his counsel was dif?cult to deal with. Yet it took 152 days to assign the EEO complaint to the contract investigator. In the Response to the Motion the lack of staff and case load increase is not the main reason for the delay in investigation. Now the reason is that the AgenCy?s managers are so busy they cannot provide an af?davit in a timely manner.11 This matter Was assignedfor investigation on day 152. Put another way, the investigation began 28 days before the end Of the 180 day time limit for investigating the EEO Complainant. The Agency took 96 extra days past the 180 days to. complete the investigation. Put another way, the investigation took 124 days to complete. Based on this timeline, it does not appear that obtaining the af?davits from the managers in question, not the decision maker(s), delayed the investigation. The Agency did not provide the investigative ?le as required by the Order to Produce or good cause why the ?le was not being produced in a timely manner. If the Agency?s actual reason for not producing the investigative ?le in a timely manner, even from when the Order to Produce was issued, the Agency should have provided the investigative report without the af?davits from its 3 high ranking managers or whatever it was that they had at the '0 The Agency provides no information about the 60% percent staff reduction. It is unknown how or why this occurred, the number of people this really represents, and the steps, if any, the Agency has taken to resolve the situation. In early January, 2015, the Agency requested a 90 day extension to complete the investigation which was well before it had assigned the case for investigation. Page 7 of 12 CASE Document 1-1 Filed 12/18/15 Page 23 Of 56 the Agency responded only to the Complainant?s Motion and Supplemental Motion. The Agency has not explained why it did not provide good?cause for not timely providing good cause why the investigation would not be provided as per the Order to Produce. The Second Supplemental Motion explains that the decision maker(s) for the moving folks in the SD positions were never interviewed for the investigation. A In essence, we have a very late investigation that does not address the gravamen of this EEO complaint, why was the Complainant chosen to be reassigned. - - Sanctions in this case are warranted. Forsome reason, the investigation began very late and was completed very late. A few days before the investigation was to be completed, a Rescheduled Initial Conference was held. At that time, the Agency was still unable to provide any helpful information about this EEO complaint. After the investigative ?le was provided, it was clear that the decision maker(s) in this matter were not interviewed. The Agency has not provided any information as to why it did not provide that part of the investigation that was done in response to the Order to Produce or explain why it could not be produced. The Agency?s actions and inactions have, interfered with the Commission?s ability to move this matter forward and despite taking an additional three (3) months to investigate, the decision maker(s) have yet to be interviewed. The method and manner in which the Agency and its contract investigator have handled this case has denied Complainant the ability to have his issue addressed in a timely and equitable manner. To restart the investigation by sending it back to the Agency or for Complainant?s attorneys to conduct discovery to make up for the short falls in the investigation, in this case, will simply add more time to this process. The availability of the Agency?s managers to address the issues in this case is unclear as well. For these reasons, it is determined that the Complainant?s Motion is Granted and a I Default Order on liability will'be entered against the Agency. This matter will move toward the addressing damages and attorney fees. This caSe is being assigned to Kimberly Greenleaf Same as the undersigned?s Phone (305) 808-1777 E-Mail: All ?iture correspondence should be addressed to Administrative Judge Greenleaf. The parties are to meet and confer to discuss settlement by August 31, 2015 and inform Administrative Judge Greenleaf of the outcome of the settlement discussions and any other outstanding matters. Discovery is authorized for damages and causation. Page 8 of 12 CASE 0.115-CV-O4424-MJD-TNL Document 1-1 Filed 12/18/15 Page 24 Of 56 Initiate: Complete: By July 20, 2015. If a party does not submit timelv discoverv request_,_ the Administrative Judge may determine that the pargy has waived the right to pursue discovepy. By October 20, 2015. A Party must resnond to a request for discoverv within 30 calendar days from receipt of the request. Requests for discovepy and objections to such reguests must be speci?c. A notice of deposition does not mini written respon_se. However. any objection to a notice of deposition must be served on the moving party. Upon adequate notice, deposition may be noticed and taken at any time during the discovery period. Discovepy motions, including motions to compelI .must be ?led within 10 calendJar after receipt of the deficient response or after the response to discovery is due, whichever occurs ?rst. Motions to compel and other discovepy motions must be aecompanied by the discovery reguests and responses and a declaration stating that the moving party has made a good faith effort to resolve the discovery dispute. The declaration shall indicate the efforts made to resolve the dispute and identify which items remain in dispute. Statements in opposition to discovepy motions must be ?led within 10 calendar davs of receipt of the motion. Rulings will be m_ade b?l upon the written submissions. The failure to timely ?le objections to di_scoverv may result in the obiections being deemed waived. The Report of Investigation is automatically part of the record and the parties may refer to it or its contents at any time. General Requirements CORRESPONDENCE AND MOTIONS Each party must provide the opposing party with a copy of all correspondence that he/she sends to the Administrative Judge. The attachment of a certi?cate of service may demonstrate that the Page 9 of 12 Document 1-1 Filed 12/18/15 Page 25 of 56 opposing party was provided a copy. Failure to provide a copy of submissions to the opposing party may result in return of such submissions without consideration. The parties are reminded of their ongoing obligation to keep this of?ce informed of their current mailing address. Other than to clarify a procedural issue or during alternative dispute resolution, it is inappropriate for the parties to engage in ex parte (one?sided) communication with the Administrative Judge. Extensions of ?ling dates and postponements will not be granted, absent a prompt request in writing and a showing of good cause. Failure by complainant to obtain representation, or failure by the agency to assign this matter to a representative, will not be grounds for postponement. On any request or motion, the requesting party shall state that he/she has made a good faith effort to resolve the matter with the non-moving party and, where appropriate, indicate whether the opposing party has an objection to the request or motion. All motions should be accompanied by a proposed order granting the relief requested in the motion. DISCOVERY The parties are hereby noti?ed of their right to seek discovery prior to the hearing in accordance with 29 C.F.R. The parties must c00perate with each other in honoring discovery requests. The parties are expected to initiate and complete needed discovery with a minimum of intervention by the Administrative Judge. Except as indicated above, copies of interrogatories, requests for production of documents, requests for admissions, deposition notices and transcripts, and responses to such should not be sent to the Administrative Judge. A. Discovery shall be completed within as directed above by the Administrative Judge. If the parties agree between themselves to extend discovery deadlines that would, in turn, extend the established deadline, the parties must seek the Administrative Judge?s prior approval. B. The method and scope of discovery shall be subject to the following: 1. Interrogatories shall be limited to one set. The set of interrogatories shall contain no more than thirty (30) questions including subparts. - 2. Requests for production of documents must be speci?c and identify the documents or types of documents requested. Requests for production of documents shall contain no more than thirty (30) requests including subparts. 3. Requests for admissions shall not exceed thirty (30) in number including subparts. This limit does not apply to admissions relating to the authenticity of documents. 4. The agency must make employees available for deposition. In addition, the agency must arrange for the appearance at deposition of former employees currently employed by the federal government. Absent prior approval from the Administrative Judge, a party must initiate discovery within twenty (20) calendar days of receipt of this Order. If a party does not submit a timely discovery request, the Administrative Judge may determine that the party has waived the right to pursue discovery. Page 10 of 12 CASE Document 1-1 Filed 12/18/15 Page 26 of 56 SAN CTIONS FOR FAILURE TO FOLLOW ORDERS Failure to follow this Order or other orders of the Administrative Judge may result in sanctions pursuant to 29 CPR. 1614. 109(t)(3). The Administrative Judge may, where appropriate: (A) Draw an adverse inference that the requested information, or the testimony of the requested witness, would have re?ected unfavorany on the party refusing to provide the requested information; (B) Consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party; (C) Exclude other evidence offered by the party failing to produce the requested information or witness; (D) Issue a decision fully or partially in favor of the opposing party. It is so ORDERED. For the Commission: A Patrick A. Kokenge Chief Administrative Judge I EEOC Miami district Miami Tower 100 SE Street, Suite 1500 Miami: FL 3313 1 Phone (305) 808-1769 e-mail Page 11 of 12 CASE Document 1-1 Filed 12/18/15 Page 27 Of 56 CERTIFICATE OF SERVICE For timeliness purposes, it shall be presumed that the parties received the foregoing ORDER ON MOTION FOR SAN CTIONS within ?ve (5) calendar days after the date it was sent via First Class Mail or on the date sent electronically, including by facsimile transmission. I certify that on June 30, 2015, the foregoing Order was sent as indicated to the following: Edward J. Goodwin (Mail) 2014 Cherokee Drive Neptune Beach, FL 32266 Julie Rook, Esq. Law Of?ce of Gary Gilbert Associates, PC irook@ggilbertlaw.com Katherine A. Dave, Esq. Law Of?ce of Gary Gilbert Associates, PC kdave ilbertlaw.com Julie Kitze, Esq. U.S. Department of Homeland Security Transportation Security Administration Julie.kitze@tsa.dhs.gov Page 12 of 12 Patrick A. Koken ge Chief Administrative Judge