By Deryn Sumner

We’ve come to the end of the road in our series on when sanctions can be issued in federal sector EEO complaints.  And fittingly, this month we’ll discuss sanctions issued at the end of the road in the administrative process: appeals before the EEOC’s Office of Federal Operations.

Either party can file appeals of final actions to the Office of Federal Operations.  Pursuant to 29 C.F.R. 1614.403(e), the agency must submit the complaint file “within 30 days of initial notification that the complainant has filed an appeal or within 30 days of submission of an appeal by the agency.”  Seems simple enough, right?

Well, every year for at least the past several years, the EEOC has issued sanctions against agencies for failing to comply with this regulation to submit the complaint file. For example, in Amina W. v. Dept. of Energy, EEOC No. 0120113823 (November 17, 2015), the EEOC issued default judgment against the agency because it failed to provide copies of the hearing transcript and did not respond to the OFO’s Show Cause Order as to why it hadn’t.  The decision notes that the agency had repeatedly failed to comply with the EEOC’s orders in the case. As it did not have the hearing transcripts, the Commission concluded it was unable to review whether the administrative judge’s finding of no discrimination was supported, and issued default judgment instead.

Yes, even though the agency won the case at a hearing, it ended up liable for discrimination because of a failure to provide the hearing transcript to OFO.  Finding that the complainant established prima facie claims of discrimination, the Commission determined remedies were appropriate, including providing the complainant a retroactive promotion with back pay, an investigation into the complainant’s entitlement to compensatory damages, and eight hours of in-person training to EEO staff “regarding their responsibilities concerning case processing and insuring that the EEOC is provided complete EEO complaint files.”  [Editor’s note: And once more we see why wise agency counsel settles an EEO complaint even when there is no basis on which to find discrimination. One simply cannot predict what will happen before EEOC. Join us for our Settlement Week seminar in November if you want to learn the tricks of the deal-making trade.]

Similarly in Complainant v. Dept. of Air Force, EEOC No. 0120083446 (September 28, 2015), the EEOC overturned the administrative judge’s decision finding no discrimination issued after a hearing and granted default judgment because the agency failed to provide the complete complaint file to OFO, including failing to provide the complete ROI, motions and pleadings from the hearing stage, and the hearing transcript.  The agency also did not respond to the Order to Show Cause as to why sanctions should not be granted, even though someone from the EEOC called the agency to confirm it received the notice.  As part of the grant of default judgment, the Commission ordered the agency to retroactively offer the complainant a position with back pay and conduct an investigation into entitlement to compensatory damages.

So, we know what the worst case scenario is if an agency fails to provide the complete complaint file to OFO.  Let’s look at what an agency can do to avoid such severe sanctions.  The facts in Denese L. v. Dep’t of Interior, EEOC No. 0120130297 (May 13, 2016) start off looking as dire to the agency as the cases discussed above.  When the agency provided the complaint file, it did not include any deposition transcripts, the prehearing report, or discovery documents.  After the EEOC emailed the agency about these omissions, the agency provided a copy of the complainant’s deposition transcripts, but not the remaining transcripts and exhibits.  The EEOC issued a Show Cause Order and unlike in the other two cases, the agency responded by submitting the missing documents and arguing that sanctions should not be imposed because it did not realize any other documentation was missing until February 2016, and it took a long time to obtain the missing documentation because it had to be retrieved from an archive.

The Commission did not credit the agency’s argument that it did not realize until recently that documentation was missing, noting that the agency’s iComplaints administrator received notice on May 19, 2015 and, regardless, the Commission’s regulations require production of the complaint file.  However, the Commission found, “because the Agency ultimately submitted the missing documentation, and the missing documentation was remotely stored in archives, we determine that sanctions are not appropriate in this case. However, the Agency is strongly reminded that failure to submit to the Commission the complete record, within the applicable time frame, may result in sanctions against the Agency in future cases. In particular, the Agency should especially focus on developing procedures that allow it to promptly locate and submit missing documents. Further, the Agency should take particular measures to ensure that it is accounting for and submitting to the Commission all documents from the hearing stage, whether an AJ has issued a decision or remanded the case to the Agency for a decision on the record.”

The Department of Interior escaped with only a scolding because it provided the requested documentation and provided a reason as to why it did not do so prior.  The best practice is to make sure you submit the complete complaint file in the first place.  If facing a Show Cause Order, provide all of the requested information and hope you have a reason why the agency did not do so before. [email protected]

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