What About Default Judgment for Agencies?
In the last couple of years, the EEOC has taken an increasingly tough stand in terms of sanctions against agencies that fail to timely and adequately investigate EEO complaints. Focusing on the importance of protecting the integrity of the EEO process, the Commission has levied the sanction of default judgment against agencies that have failed to even initiate investigations within the 180-day regulatory period. See, e.g., Talahongva-Adams v. Secretary of Interior, EEOC Appeal No. 0120081694 (2010) and Royal v. Secretary of Veterans Affairs, EEOC Petition No. 0520080052 (2009). The decisions were issued, in part, in response to criticisms that if a complainant failed by one day to miss any of the numerous filing deadlines in the EEO process, he or she lost entirely the right to pursue a discrimination complaint, yet agencies ignored regulatory timeframes with impunity.
That’s fine, but is the EEOC really imposing sanctions in a fair manner? Consider that the most draconian sanction that the Commission levies against complainants is not a dismissal or some form of directed judgment, but a cancelation of the hearing request and a remand of the case for a final agency decision on the record. What part of the integrity of the EEO process is promoted when a complainant fails to cooperate entirely at the hearing stage, but instead of having his or her complaint dismissed still gets a decision on the merits from the agency, which is appealable to the EEOC? Isn’t it just a waste of time and precious resources? After all, how many complainants have their case remanded to the agency because of a failure to cooperate and then win their cases on the merits based on the existing record? In fact, isn’t the whole process really disingenuous given the extraordinarily low probability that the complainant can prevail on the existing record? And, if that’s so, doesn’t cancelation of the hearing request and remand as a sanction ultimately undermine the integrity of the EEO process?
Let’s take a look at a recent example. In Meredith v. Attorney General, EEOC Appeal No. 0120102681 (September 24, 2010), the complainant failed to appear for a properly scheduled deposition. In response to the agency’s motion for sanctions, the only argument raised by the complainant was that she was not represented by counsel. The administrative judge canceled the hearing and remanded the case to the agency for a final decision on the record. The agency then wrote a final decision dismissing one of the claims for failure to state a claim and finding no discrimination, in this case on the basis of reprisal, on the other four claims.
The complainant appealed and the Commission upheld both the imposition of sanctions and the specific sanction, noting that the complainant, for the first time, raised arguments that she had decided to hire an attorney and had notified agency counsel, who had traveled from out of town for the deposition, by emails the day before the scheduled deposition that she would not be attending. The Commission noted that the complainant had not attempted to contact the judge and seek permission to not attend the deposition. The Commission also reviewed the agency’s final decision on the four claims decided on the merits, upholding the agency on each claim. The complainant did not challenge the dismissal of the one claim.
How is that a better result than simply dismissing the entire complaint due to the complainant’s failure to appear for a scheduled deposition? It’s hard to see how the integrity of the EEO process is promoted by requiring both the agency and the Commission to expend resources reviewing on the merits the claims raised. If the Commission permitted the dismissal of complaints as a sanction, all that the agency would have needed to do is to notify the complainant that it was fully implementing the decision of the judge and the only thing the Commission would have been required to review is the sanction decision. Letting complainants know that the sanction for failing to cooperate is every bit as severe as the sanction for the agency’s failing to meet its investigatory obligations not only promotes the integrity of the process, it preserves resources that can be better utilized in other cases.
It’s time for the EEOC to revisit its position that the ultimate sanction for complainants is cancelation of a hearing and remand for a final agency decision
Written by Ernest Hadley