By Meghan Droste, March 19, 2020
Way back in January 2018, which feels like a lifetime ago at a time when every day brings at least 20 urgent news alerts and many more times as many things to worry about, I wrote my first article for this newsletter. I discussed the Commission’s decisions in a case in which the agency repeatedly refused to comply with orders from OFO. (The decisions are in the Selene M. v. Tennessee Valley Authority case, Appeal No. 0720150024, Request No. 0520170121, and Petition No. 0420170027, if you’re curious.) The agency repeatedly explained why it was not complying with the Commission’s orders, and the Commission repeatedly told the agency to do it anyway.
When I bring this case up during classes, I get questions about the Commission’s ability to enforce its decisions. After all, the Commission, like other judicial bodies, can only do so much when it tells a party what to do (or not do). The Commission has no army to compel agencies to comply. Does that mean agencies get a free pass? Not quite, as we can see in the recent decision in Alma F. v. Department of the Army, EEOC Pet. No. 2019004337 (Feb. 4, 2020).
The administrative judge found in the complainant’s favor and ordered various types of relief. The agency appealed the characterization of backpay as pecuniary damages. The Commission agreed, holding that back pay was equitable relief, and ordered the agency to comply with the order and file documentation outlining its compliance. All of that took place in 2015. By June 2016, six months after the Commission’s decision, the agency had failed to file any documentation or respond to the Commission’s requests for evidence of compliance. As a result, the Commission opened a petition for enforcement. In January 2017, the Commission again ordered the agency to comply and submit documentation. The agency again failed to respond, resulting in the February decision.
Remarkably, the Commission noted in its decision that the agency failed to provide evidence of compliance in 19 other cases, all with petitions for enforcement from 2019. The Commission reminded the agency that failure to comply with its orders could result in any of the measures outlined in 29 C.F.R. § 16414.503, including a show cause order to the head of the agency or certification to the Office of Special Counsel. It then ordered the agency to comply with the previous orders and provide a report with an analysis of “Agency-wide EEO reporting on compliance with EEOC orders to identify problem areas,” and a “detailed action plan setting forth how the problems identified in its analysis will be corrected, delays ended, and compliance reporting brought in accordance with EEOC regulations.”
With the Commission seemingly lacking a method to force compliance, it might be tempting to take a “you and what army?” approach. However, as you can see from the potential repercussions, I definitely would not recommend that. Droste@FELTG.com