By Deryn Sumner
So far in this series on sanctions in federal sector EEO complaints, we’ve talked about the EEOC’s authority to issue sanctions against either party, and three different situations that can give rise to sanctions: agencies failing to timely complete investigations, agencies failing to complete thorough and appropriate investigations, and either party failing to cooperate during discovery. This month, let’s talk about when sanctions are appropriate for a party’s general failure to comply with an administrative judge’s orders in a case and look at some recent cases where administrative judges issued such sanctions.
In Gilbert B. v. USPS, EEOC No. 0720150008 (March 18, 2016), the Commission affirmed an administrative judge’s issuance of sanctions where the agency representative failed to properly serve the complainant with a request to continue a settlement conference. The choice of service was an issue because the agency requested to reschedule the settlement conference just two days prior and served the request by mail to the complainant and his attorney who lived in Guam. The administrative judge also issued sanctions against the agency for failing to cooperate in settlement discussions in good faith. The agency argued, after the fact, that it had a policy of not voluntarily participating in a settlement conference with an administrative judge who also served as the presiding judge. The Commission agreed that the sanction, attorney’s fees the complainant incurred by not being notified of the change in the settlement conference date and time, to be appropriate.
In Eyrn O. v. Dept. of Veterans Affairs, EEOC No. 0120131752 (January 8, 2016), the Commission affirmed the administrative judge’s sanction against the complainant by dismissing her hearing request where the complainant failed to show good cause for her failure to file a prehearing submission or to attend the prehearing conference. The complainant did not dispute that she had received notice of the deadlines, but did not notify the parties that she would not appear, nor did she request an extension before the deadline.
And finally in Marquitta B. v. USPS, EEOC No. 0120140518 (December 17, 2015), in a case where I’m just glad I wasn’t involved, the Commission affirmed the administrative judge’s award of sanctions against the complainant because the decision was “supported by an extensively documented record of contumacious conduct on the part of Complainant and her counsel. That conduct included: failure to respond to an instruction to file a motion to amend her complaint; attempting to utilize an unauthorized court reporter to transcribe a pre-hearing teleconference; repetitive, excessive, and overbroad discovery requests; abusive behavior by counsel; resubmission of a motion that had already been denied in a way that expressed contempt for the AJ’s authority; and most important, failure to appear at the hearing itself. Under these circumstances, we find no abuse of discretion on the part of the AJ.” The Commission affirmed the sanction of dismissal of the hearing request and remand of the case for issuance of a FAD.
Remember, the EEOC provides broad discretion to its administrative judges in conducting hearings. As MD-110 Chapter 7 states, “The Commission has the authority to issue sanctions in the administrative hearing process because it was granted, through statute, the power to issue such rules and regulations that it deems necessary to enforce the prohibition on employment discrimination. See Waller v. Dep’t. of Transportation, EEOC Appeal No. 0720030069 (May 25, 2007), request for reconsideration denied, EEOC Request No. 0520070689 (Feb. 26, 2009). In this respect, the Commission has determined “that delegating to its Administrative Judges the authority to issue sanctions against agencies, and complainants, is necessary and is an appropriate remedy which effectuates the policies of the Commission. Id.” Ignore the orders of the administrative judge at your own peril. Sumner@FELTG.com