Federal Legal Corner

The Equal Employment Opportunity Commission recently issued several important decisions concerning sanctions. Most recently, in Waller v. U.S. Department of Transportation, EEOC Appeal No. 0120030069 (February 26, 2009), the Commission denied the agency's request for reconsideration of its prior decision in that case, EEOC Appeal No. 0720030069 (May 25, 2007), affirming the administrative judge's (AJ's) issuance of sanctions, including monetary sanctions, against the agency. The AJ sanctioned the agency for its failure to provide certified responses to several of complainant's interrogatories by deeming complainant's relevant proposed findings of fact as uncontested and ordering the agency to pay reasonable attorneys fees and costs incurred by complainant in preparing her motion for sanctions.

In its request for reconsideration, the agency argued that imposition of monetary sanctions was barred because it had not waived sovereign immunity, referring to a memorandum prepared by the Department of Justice, and because the sanctions were inappropriate, in that, it argued, the discovery was overbroad, it had cooperated with complainant, and the sanctions were "unexpected." In rejecting the agency's contentions, the Commission found that the AJ acted properly and consistent with its regulations, the EEO Management Directive-110 (November 9, 1999), and Commission precedent when she ordered the agency to pay attorney's fees.

In contrast, in Jeffress v. Social Security Administration, EEOC Appeal No. 0120090166 (February 5, 2009), the Commission sanctioned the complainant for similar conduct. In that case, the complainant did not respond to an order to show cause concerning certain discovery requests she failed to respond to appropriately, causing the AJ to "dismiss" her case as a sanction. On appeal, the Commission clarified that the "dismissal" was a dismissal of the hearing request, not the entire claim, and ordered the agency to issue a final decision based on the record as it stood, without the benefit of hearing testimony.

Additionally, in Petersel v. Postmaster General, EEOC Appeal No. 0720060075 (October 30, 2008), the Commission upheld adverse inferences ordered by the AJ against the agency where it failed to include comparative information in the report of investigation and then failed to produce the information in response to complainant's discovery requests. The AJ found that sanctions were appropriate not only because the agency did not produce the information, but also after determining that the agency's counsel failed to meet his obligation to conduct a "good faith inquiry" prior to responding that the requested information was not available.

These cases follow a string of cases where the Commission upheld AJs' decisions entering default judgment in favor of complainant as a sanction against the agency where the agency submitted the report of investigation beyond the 180-day limitation period for completing the investigation specified in the EEOC regulations. See, e.g., Lomax v. Department of Veterans Affairs, EEOC Appeal No. 0720070039 (October 2, 2007), request for reconsideration denied, (December 26, 2007); Reading v. Secretary of Veterans Affairs, EEOC Appeal No. 07A40126 (2006); Royal v. Secretary of Veterans, EEOC Appeal No. 0720070045 (2007). When taken together, these recent decisions on sanctions show the Commission's intention to use its authority to hold parties accountable for failing to comply with its regulations and orders issued by its AJs.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com/ .

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