Federal Legal Corner

In Waller v. Department of Transportation, EEOC Appeal No. 0720030069 (May 25, 2007), the Equal Employment Opportunity Commission (EEOC) found that that an administrative judge (AJ) properly exercised her discretion, and acted consistent with commission regulations, the MD-110, and commission precedent in ordering the agency to pay attorney fees as a sanction for the agency's failure to fully respond to discovery requests. This decision reverses a long-standing prohibition on the award of attorney fees as a sanction.

In Waller, the AJ informed the parties that they could be sanctioned for not complying with her orders in her acknowledgment and order. After the AJ directed the agency to provide certified responses to complainant's interrogatories, and the Agency failed to comply, complainant filed a motion for sanctions. The AJ granted the motion, deeming uncontested complainant's relevant proposed findings of fact and ordering the agency to pay reasonable attorneys fees and costs incurred in preparation of the motion for sanctions.

The agency appealed, arguing that due to the doctrine of sovereign immunity the EEOC is barred from imposing monetary sanctions against federal agencies, as is set forth in a Department of Justice memorandum. The commission, however, concluded that it possesses "the authority to issue sanctions in the administrative hearing process because it has been granted, through statute, the power to issue such rules and regulations that it deems necessary to enforce the prohibition on employment discrimination." Matheny v. Dept. of Justice, EEOC Request No. 05A30373 (2005). The commission also held that it has specifically deemed monetary sanctions, to include attorney fees and costs, "necessary and appropriate to carry out its responsibilities." See 42 U.S.C. § 2000e-16(c). The commission stated:

". . . the commission has long utilized monetary sanctions as a tool to ensure full compliance with administrative judges' orders. . . . Indeed, awarding attorney's fees and costs as a sanction ensures the integrity and efficiency of the administrative process. No party has the opportunity to pick and choose which order by an administrative judge it deems worthy of compliance. . . .

". . . Where a party refuses to comply, an administrative judge may: (1) draw an adverse inference . . . ; (2) consider the missing information to be favorable . . . ; (3) exclude other evidence offered . . . ; (4) provide a summary disposition . . . ; and (5) take other action deemed appropriate, e.g., order payment of attorney's fees and costs and expenses by the non-complying party. The commission notes that an administrative judge has the authority to impose attorney's fees and costs to ensure that parties obey discovery or other orders. MD-110, Chapter 11, Section VIII(C), citing, 29 § 1614.109(f)(3)(v)."

The commission also referenced past cases where it upheld the use of attorneys fees as sanctions, e.g., for failure to produce records requested during discovery (even where complainant is unsuccessful on the ultimate issue of discrimination) as in Stull v. Dept. of Justice, EEOC Appeal No. 01941582 (1995); where the agency acted in bad faith in failing to appear for properly scheduled depositions as in Comer v. Federal Deposit Insurance Corp., EEOC Request No. 05940649 (May 31, 1996); for various types of egregious conduct as in Johnson v. Dept. of Navy, EEOC Appeal No. 07A20058 (2002) where the agency failed to appear for prehearing conference or submit a preheating statement in timely fashion; and for the agency's attempts to "stonewall" the investigation as in Graham v. Dept. of Transportation, EEOC Appeal No. 01986978 (August 17, 2001). Finally, the commission noted that AJs also possess the authority to order a party to pay attorney fees and costs to prevent a party's misconduct in the future, so long as the sanction is appropriately tailored. See Barbour v. United States Postal Serv., EEOC Appeal 07A30133 (2005); Harris v. United States Postal Serv., EEOC Appeal No. 07A30039 (2005).