By Deryn Sumner
As promised, over the next several months we’re going to discuss the different reasons why one party may move for sanctions against the other in the federal sector EEO process. We’re going to begin this month with something that has gotten a fair amount of attention over the past nine years: requests for sanctions, up to and including default judgment, when an agency fails to timely complete an EEO investigation.
Let’s first look at the regulations. The Commission’s regulations at 29 C.F.R. 1614.108(f) require agencies to complete EEO investigations within 180 days of the filing of (not receipt of) the formal complaint. Where a complainant subsequently amends a complaint, the investigation must be completed by either 180 days from the last amendment, or 360 days from the filing of the original formal complaint, whichever is earlier. Once that timeframe has expired, a complainant can request a hearing, even if the investigation is not completed.
A new requirement set forth in Chapter 5 of the recently revised MD-110 states, “If the investigation is not completed within the 180-day time limit, the agency must send a notice to complainant informing him/her that the investigation is not complete, providing an estimated date by which it will be complete and explaining that s/he has a right to request a hearing from a Commission Administrative Judge or to file a civil action in the appropriate U.S. District Court. The notice must be in writing, must describe the hearing process including some explanation of discovery and burdens of proof, and must acknowledge that its issuance does not bar complainant from seeking sanctions.” I can’t say I’ve seen one of these notices yet.
There are many cases addressing whether sanctions are appropriate for untimely investigations. Here are some of the key ones for federal sector practitioners to review and familiarize themselves with:
- Cox v. Social Sec. Admin., EEOC App. No. 0720050055 (Dec. 24, 2009)
- Royal v. Dep’t of Veterans Aff., EEOC App. No. 0720070045 (Sept. 10, 2007), recons. den., 0520080052 (Sept. 25, 2009)
- Talahongva-Adams v. Dep’t of the Interior, EEOC App. No. 0120081694 (May 28, 2010)
- Giza v. Dep’t of Justice, EEOC App. No. 0720100051 (Apr. 1, 2011)
- Montes-Rodriguez v. Dep’t of Agriculture, EEOC App. No. 0120080282 (Jan. 12, 2012), recons. den. 0520120295 (Dec. 20, 2012)
- Adkins v. FDIC, EEOC App. No. 0720080052 (Jan. 13, 2012)
So, how should Agency Representatives respond to such motions when, in fact, the Agency failed to timely complete the investigation? First, engage in an investigation of your own. Figure out what happened and who was involved in the investigation. Get affidavits, if appropriate, from the EEO or Civil Rights staff explaining what happened. Also, if the timeframes of non-compliance are minimal, point that out to the Administrative Judge. However, do not hang your hat on blaming a contractor for any delays. As the Commission said in Cox, “The fact that the agency contracts with an outside company to conduct the investigation does not absolve it of its responsibility to ensure that the ROI is adequately developed on which to base a decision.”
In your response, talk about each of the pertinent factors cited by the Commission in determining what, if any, sanction is appropriate. These include (1) the extent and nature of the non-compliance, including the justification 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, if any; and (4) the effect on the integrity of the EEO process. If the non-compliance was minimal and if there’s any colorable justification for the delay, provide that. Point out if there were no prejudicial effects or consequences as a result of the delay.
If the non-compliance is substantial, you may want to consider arguing for a lesser sanction, such as covering the costs of discovery, in lieu of default judgment. As the Commission stated in Cox, “In general, the Commission has held that sanctions, while corrective, also act to prevent similar misconduct in the future and must be tailored to each situation, applying the least severe sanction necessary to respond to the party’s failure to show good cause for its actions, as well as to equitably remedy the opposing party.” (citations omitted and emphasis added).
Next month we’ll talk about when sanctions are appropriate for insufficient or inappropriate investigations. Sumner@FELTG.com