By Meghan Droste, January 17, 2018
Although I have represented both agencies and complainants, I spend most of my time on the employee side of things. As anyone who regularly represents employees will tell you, at times it feels like the rules only apply to complainants. There are numerous deadlines, including some that feel impossibly short, and if a complainant misses just one, it can be fatal to her complaint. On the other side, agencies miss deadlines with some frequency and it seems like there are no consequences. Fortunately, or unfortunately depending on your perspective, that perception is not (always) right. The case discussed below highlights just how important it is for agencies to meet their deadlines as well.
In Selene M. v. Tennessee Valley Authority, the complainant worked for the agency as a contract General Foreman. In 2011, the agency involuntarily reassigned the complainant to a different work location, downgraded her position, and reduced her pay. One month later the agency removed the complainant and permanently banned her from employment with the agency as an employee or a contractor. The complainant filed a formal complaint alleging a hostile work environment and reprisal. Notably, the agency acknowledged in its letter accepting the complaint for investigation that it was a joint employer of complainant.
Following a hearing, the administrative judge entered a finding of sex discrimination and reprisal. The judge ordered the agency, among other relief, to place the complainant in a permanent position with a salary equal to or greater than what she was earning at the time of the discriminatory events. The judge also ordered the agency pay the complainant back pay with related retirement benefits.
The agency attempted to appeal the administrative judge’s decision. Selene M. v. TVA., EEOC App. No. 0720150024 (October 18, 2016). I say attempted because although it appears the agency timely mailed its final order to the complainant, it failed to timely mail its final order and appeal to the Commission. The agency explained its 13-day delay as an inadvertent error. The Commission, however, was not moved by this explanation, rejected the agency’s appeal, and ordered the agency to take the same remedial actions the administrative judge previously ordered.
Unlike its appeal, the agency timely submitted its request for reconsideration. Selene M. v. TVA, EEOC Req. No. 0520170121 (April 11, 2017). In its request, the agency argued that the order to reinstate complainant in a permanent position and to pay related benefits was plainly an error because the complainant was a contractor and not entitled to this relief. The Commission refused to address these arguments, rejecting the agency’s request because there was no error in its earlier the finding that the agency’s initial appeal was untimely.
The agency did not take no for an answer, as we learn from the complainant’s subsequent petition for enforcement. Selene M. v. Tennessee Valley Auth., Pet. No. 0420170027 (December 15, 2017). Although it implemented some of the relief previously ordered, the agency refused to reinstate the complainant or pay the full amount of back pay and benefits as required by the Commission’s orders. In response to the complainant’s petition for enforcement, the agency again argued that the relief the Commission ordered was improper. Unsurprisingly, the Commission was not persuaded. It noted in its response to the complainant’s petition that the agency was attempting to undo the Commission’s decision and orders. The Commission then went further and reminded the agency that its appeal and request for reconsideration were unsuccessful, and there is no further opportunity to litigate or relitigate the matter.
What can we learn from all of this? Deadlines apply to both sides in a complaint, and agencies will be well-served to ensure that they meet them going forward. Droste@FELTG.com