By Meghan Droste, August 18, 2021

Litigation, even when it all goes according to plan, can end up being a long and winding road.  And when it doesn’t go quite as it should … well, a long, strange trip is one way to describe what can happen.

Randolph A. v. Department of Veterans Affairs, EEOC Pet. No. 2020004882 (June 23, 2021) is a journey filled with many twists and turns. The story starts in September 2010 when the complainant filed a formal complaint regarding a non-selection. The agency investigated the complaint and issued an ROI. The complainant requested a hearing and then subsequently appealed the administrative judge’s grant of summary judgment in favor of the agency. On appeal, the Commission found in favor of the complainant and awarded several remedies, including placement in a position and back pay, and ordered the agency to conduct a supplemental investigation regarding compensatory damages. The agency filed a request for reconsideration, which the Commission denied.

So far everything seems straightforward. But here’s where the journey gets a bit strange: Instead of implementing the Commission’s decision, the agency sent a letter in 2016 to the Commission, asking the Commission to vacate its decision based on a November 2010 global settlement agreement with the complainant. The complainant objected to this and filed a petition for enforcement. The Commission found that the agency’s arguments regarding the settlement agreement were untimely, and that the agency had waived them, having waited until after the investigation, hearing stage, and appellate process to first raise the existence of the agreement. In November 2017, the Commission ordered the agency to comply with the previous order.

Unsatisfied with this result, the agency wrote to the EEOC acting chair in January 2018 to seek review and reversal of the Commission’s decision.  A month later, the agency issued a final order awarding damages. The complainant appealed the award, which the Commission modified.  In response, the agency filed request for reconsideration and again raised the arguments regarding the settlement agreement.

As the Commission notes, “[d]espite repeatedly addressing the Agency’s assertion in prior decisions, the Commission nonetheless provided the Agency with further reasoning and explanation” as to why its very untimely arguments failed. The case then ended up before the Commission yet again because the agency refused to comply with the decision and instead sent its January 2018 letter to the compliance officer.

In its most recent decision, the Commission provided a lengthy discussion of why the agency’s arguments failed, drawing comparisons to the Federal Rules of Civil Procedure to highlight how the agency failed to act with due diligence in 1) keeping track of the 2010 settlement agreement, and 2) timely raising arguments regarding it. The Commission yet again ordered the agency to pay compensatory damages to the complainant. It also informed the agency that if it failed to do so, it might refer the matter to the Office of Special Counsel under the memorandum of understanding (MOU) between to the two agencies. Under the MOU, OSC could initiate disciplinary action.

It’s unclear where the agency will go from here, but hopefully the potential involvement of OSC will prompt the agency to finally follow the Commission’s order and pay the damages it was ordered to pay years ago.

One last thing — the title of this article isn’t just about the Randolph A. case. It’s also because, to borrow from another song and a completely different genre, it’s time for me to say so long, farewell, auf Wiedersehen, and goodbye to the wonderful FELTG community. Starting next month, I will be joining the ranks of many you as a Federal employee.  Thank you to all of you who have joined me in the classroom over the past four years.  I have learned so much from you and will take many fond memories with me.  To paraphrase my source material, what a (not) long (enough), (wonderful) trip it has been – I hope this is more of a see you later rather than a real goodbye. [email protected]

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