By Deryn Sumner, December 14, 2016
I know firsthand the frustration agency representatives can experience when they are being asked about when a payment under a settlement agreement or administrative judge’s order will be made, and they can’t give a clear answer, because their agency isn’t the one that actually makes the payment. Many agencies rely on other entities such as DFAS or Department of Treasury to effectuate payments, and it can be very hard to get information about when the payments will be made when it’s not in your agency’s control. Or, you are being asked to change personnel records or leave records from many years ago, and those records have been archived or kept in a system that is no longer used by the agency.
The EEOC understands. In Kristy E. v. Department of Air Force, EEOC Petition No. 0420160005 (November 18, 2016), the petitioner requested enforcement of the EEOC’s prior decision and an award of $75,000 in sanctions for the continued delay in obtaining the ordered relief. This case has a convoluted and lengthy procedural history. As I talk about elsewhere in this month’s newsletter, the EEOC made it a priority in fiscal year 2016 to resolve older cases on the docket. Here, the complainant filed a formal complaint in 2004, received default judgment in her favor in 2008, and is still dealing with this case over a decade after it began. The Agency rejected the Administrative Judge’s (AJ’s) order granting sanctions and ordering relief and filed an appeal in 2008. The Office of Federal Operations took until 2015 to issue a decision on the appeal and ordered the Agency to implement the AJ’s decision. The Agency requested several extensions of time to implement the ordered relief, noting that restoring the ordered 675.75 hours of leave posed a challenge as the employee’s leave records had since been archived. The employee eventually filed a petition for enforcement and requested monetary sanctions for the delay.
The Commission, although it granted the petition for enforcement and ordered the Agency to comply with its prior Order, did give the Agency a break, and stated:
As we noted in our November 19, 2015, letter, in situations like this, where records have been archived, it can add weeks or even months to an agency’s compliance efforts. As we further noted, the Agency provided good cause, given that it lacked access to Petitioner’s salary records. We note that the Agency, throughout the compliance process, stayed in contact with both the Commission and Petitioner concerning its efforts to obtain compliance with Part 6. Therefore, we decline to sanction the Agency. Also, with respect to Petitioner’s request that the Agency be sanctioned with an additional damages award of $75,000, we note that such a sanction would amount to punitive damages, which are unavailable against the government or a government agency. See Section 102 of the Civil Rights Act of 1991, 42 U.S.C. § 1981(A)(b)(1); Jones v. Dep’t of Health and Human Serv., EEOC Request No. 05940377 (January 23, 1995) (citing Graham v. U.S. Postal Serv., EEOC Request No. 05940132 (May 19, 1994)).
The takeaway for agencies from this decision: keep in communication with the employee and the assigned compliance officer regarding attempts to comply with the Commission’s orders and if there’s a specific reason for the delay, such as problems obtaining archived records or effectuation of payments being outside of the agency’s control, communicate that. The Commission understands the challenges that can come along with implementing these orders. Sumner@FELTG.com