Failure to Investigate Complaint

February 13, 2013

In Dodson v. Dep't of the Army, EEOC Nos. 531-2012-00413x, 531-2013-00012x (Jan. 10, 2013), an EEOC administrative judge issued a default judgment against the Army for failure to investigate the complainant's two formal EEO complaints within 180 days, as required by 29 CFR §1614.106(e) (2) and 1614.108(e). The AJ stated that the agency's deliberate failure to investigate complainant's two formal complaints within 180 days kept the complainant's cases in limbo for half a year and had the effect of denying her statutory rights. In his ruling, the AJ stated that the agency failed twice to do one major thing, which was to investigate the cases.

The agency argued that in order to effectively utilize investigative resources, it did not investigate a case unless there was more than one case to be investigated at a particular agency facility. The AJ characterized this policy as "misguided" to the extent that it ignored the 180-day investigation completion requirement. The AJ noted that the agency could have extended the time to investigate the complaints by consolidating the two formal complaints or could have requested an extension of time for the investigation, but failed to do either.

In response to the agency's argument that the AJ erred by halting the agency's fact-finding conference, the AJ noted that a request for a hearing divests the agency of its jurisdiction to investigate a case. Citing 29 CFR §1614.109(a) and Management Directive 110, Ch.7, the AJ stated that once a complainant has requested a hearing and the case is assigned to an AJ, the AJ has full responsibility for adjudication of the case, including overseeing development of the record. The AJ noted that the complainant "was not required to cooperate in the rogue investigation that the agency insisted on initiating after the requests for hearing were made." The AJ emphasized that a complainant has no obligation to participate in an agency's investigation after the expiration of the 180-day period.

The AJ also rejected the agency's argument that it should not be held responsible for the delay in the investigation because a different component of the Department of Defense handles all EEO investigations. The AJ noted that the Commission has rejected agencies' attempts to excuse their failure to comply with federal regulations by blaming a different office within the agency for the delay. The AJ stated that the Army, a component of DoD, cannot evade its mandatory obligations to timely complete an EEO investigation "by laying blame at the doorstep of a different office in the Department of Defense." The AJ emphasized that if agencies were allowed to evade regulatory requirements simply by creating a separate component within its larger department and then blame the other component for the delay, "this would completely eviscerate the federal regulations and undermine the authority and responsibilities of the EEOC to protect the civil rights of federal employees."

In entering a default judgment, the AJ cited the Federal Rules of Civil Procedure in ruling that a complainant must still make a showing of discrimination by the preponderance of the evidence for him to issue a decision on the merits in her favor. The AJ ordered that the complainant must provide evidence to establish a prima facie case on her claims and ruled that since the default judgment had been entered, the agency could not file a response.

* 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 https://www.passmanandkaplan.com.