0520080052
09-25-2009
Dawn R. Royal, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Dawn R. Royal,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 0520080052
Appeal No. 0720070045
Hearing No. 430-2007-00003X
Agency No. 2004-0652-2006101859
DECISION
The agency timely requested reconsideration of the decision in Dawn
R. Royal v. Department of Veterans Affairs, EEOC Appeal No. 0720070045
(September 10, 2007). EEOC regulations provide that the Commissioners
may, in their discretion, grant a request to reconsider any previous
Commission decision where the requesting party demonstrates that: (1) the
appellate decision involved a clearly erroneous interpretation of material
fact or law; or (2) the appellate decision will have a substantial
impact on the policies, practices, or operations of the agency. See 29
C.F.R. � 1614.405(b). For the following reasons, the Commission denies
the agency's request for reconsideration, and accordingly affirms the
issuance of a default judgment in favor of complainant.
ISSUES PRESENTED
The issue presented is whether our previous decision involved a clearly
erroneous interpretation of material fact or law, or whether it would
have a substantial impact on the policies, practices or operations of
the agency, in upholding an Administrative Judge's issuance of a default
judgment in complainant's favor as a sanction for agency actions.
BACKGROUND
In our previous decision, we reversed the agency's final order rejecting
an EEOC Administrative Judge's (AJ) decision that entered a default
judgment in complainant's favor. The AJ issued the default judgment as
a sanction for the agency's failure to complete an investigation within
the 180-day period specified at 29 C.F.R. � 1614.108(e).
It is instructive, at this point, to revisit the circumstances leading
to the default judgment. Complainant, a Staff Nurse Supervisor at the
agency's Veterans Affairs Medical Center in Richmond, Virginia, filed a
formal complaint on May 1, 2006, in which she claimed that she had been
discriminated against on the basis of her race (African American) when,
on March 14, 2006, she was not selected for the position of Nurse Manager,
Unit 2E, Ambulatory Procedure Unit/Preadmission Screening Clinic, and
when on March 28, 2006, she was not assigned duties that would enable
her to be promoted. On May 25, 2006, the agency accepted the complaint
for investigation.
On October 4, 2006, 166 days after filing her complaint, complainant
requested a hearing before an AJ. On October 13, 2006, the AJ issued an
order giving the agency 15 days to produce the complaint file, including
the report of investigation, or to show good cause for the failure to
produce it. The AJ noted that failure to comply with the order might
result in sanctions against the agency, including a default judgment in
favor of complainant. The agency responded, stating that the order and
complainant's hearing request were premature.
On November 9, 2006, 192 days after complainant filed her complaint,
the agency assigned an investigator to the discrimination complaint.
Complainant resubmitted her hearing request on November 14, 2006, pursuant
to 29 C.F.R. � 1614.108(g).1 The agency forwarded the complaint file
to the AJ on November 27, 2006, but noted that the investigation was
incomplete.
On December 28, 2006, 241 days after her complaint had been filed,
complainant filed a motion requesting sanctions against the agency for
failure to timely complete the investigation and failure to show good
cause why it had not done so. In its response, the agency claimed that
sanctions were not warranted because the complaint file had already
been sent to the AJ, and the AJ had not re-issued the Order to Produce.
The agency also claimed that complainant had attempted to abuse the EEO
process by knowingly filing a premature hearing request.
On December 29, 2006, the agency completed the investigation and
sent copies of the report of investigation to the AJ and complainant.
On January 30, 2007, the AJ issued an order directing the agency to show
cause why a decision fully in favor of complainant should not be issued
in light of the agency's failure to timely investigate the complaint.
In its response, the agency claimed that it did not fail to investigate,
but merely delayed the investigation, and that complainant had not been
adversely affected by the delay. The agency also claimed that complainant
has a history of abusing the EEO process and that a decision in favor of
complainant would harm the VA Medical Center, as opposed to the agency
entity that is responsible for conducting EEO investigations.
The AJ issued an interim decision on February 15, 2007, sanctioning
the agency for its failure to assign an investigator until after the
expiration of the 180-day period to complete the report. The AJ entered
a default judgment in favor of complainant, including relief in the form
of a retroactive promotion to the position of Nurse Manager, back pay and
benefits, and equal opportunity to participate in detail assignments.
In the interim decision, complainant was instructed to submit within
15 days evidence in support of her claim for compensatory damages and a
statement of attorney's fees and costs. However, complainant failed to
respond in a timely fashion. The AJ then issued a subsequent decision
on April 4, 2007, granting complainant the relief previously stated in
the interim decision.
The agency's April 26, 2007 final order rejected the AJ's decision.
On appeal, the agency argued that the AJ abused her discretion in issuing
a default judgment in favor of complainant. The agency claimed that
complainant knew or should have known that her initial hearing request
was premature, and that complainant experienced no adverse consequences
as a result of the agency's delay in investigating the complaint.
Further, the agency claimed that the AJ focused exclusively on the
date the agency's investigation was due and its past transgressions,
rather than complainant's errors and intentional disruptions to the
discrimination complaint process. Finally, the agency argued that the
AJ abused her discretion in imposing sanctions, which had the effect
of promoting complainant to the position of Nurse Manager without a
consideration of complainant's qualifications. Complainant responded,
urging the Commission to affirm the AJ's decision.
In our previous decision, we found that no investigation was ever begun,
much less completed, within 180 days. We further found that the agency
was well aware of its responsibility to comply with the regulatory time
limit, but that it intentionally delayed doing so. We highlighted
the fact that the Commission has the inherent power to protect its
administrative process from abuse, and has the duty to ensure that
agencies, as well as complainants, abide by its regulations.
We also noted that 29 C.F.R. � 1614.109(f)(3) authorizes EEOC AJs to
sanction a party for the failure to respond fully and timely to requests
for evidence. Accordingly, we found that the AJ did not abuse her
discretion in issuing a default judgment as a sanction for the agency's
dilatory actions.
ARGUMENTS ON RECONSIDERATION
In its request for reconsideration, the agency argues that our decision
applied a clearly erroneous interpretation of material fact and law
which, if left to stand, would have a substantial impact on the policies,
practices and operations of the agency.
First, the agency argues that, to the extent the sanction was warranted,
the AJ erred in not tailoring the sanction to the specific facts of the
case and in not applying the "sanction factors" discussed in Voysest
v. Social Security Administration, EEOC Appeal No. 01A35340 (January
18, 2005) and Gray v. Department of Defense, EEOC Appeal No. 07A50030
(March 1, 2007) (see, infra). Although acknowledging the Commission's
concerns about the effect that an agency's failure to timely complete an
investigation would have on the integrity of the EEO process, the agency
insists that the extent and nature of the agency's non-compliance does
not warrant a blanket judgment finding that the agency intentionally
discriminated against complainant. It argues that the AJ and the
Commission should have considered other mitigating factors, such as
the fact that the delay was very short (the investigation was completed
within a little over two months from the date that it should have been
completed), and that the cause of the delay was not an intentional act to
prejudice complainant personally, but rather was due to an institutional
lack of resources.
The agency further argues that the sanction imposed on the agency is
disproportionate to any harm caused by the delay. The agency argues
that neither complainant nor the EEO process suffered any prejudice by
the agency's actions.
The agency also argues that allowing the decision to stand would
have a negative impact on the policies and operations of the agency.
It explains that ordering that complainant be promoted to the position
at issue without any regard to her lack of qualifications is essentially
a usurpation of the agency's right to make such personnel decisions.
The Commission would impermissibly be acting as the super-personnel
decision-maker for the agency, second-guessing the agency's selection
decisions.
Lastly, the agency argues that, contrary to what we stated in our previous
decision, it provided documentation and explanations for its failure
to investigate the complaint before the lapse of the 180-day period.
It offered various declarations stating that budgetary constraints and
the lack of resources prevented it from acting on the complaint faster.
The agency asserts it has since implemented an action plan to complete
its obligations in a timely manner.
Complainant responded to the request for reconsideration by arguing that
the previous decision should be upheld. In her reply brief, complainant
posits that the agency did not show good cause for its delay in assigning
an investigator. She states that "the regulatory scheme for processing
complaints is slow enough without an agency simply refusing to bother
conducting the investigations they are obligated to conduct." Further,
she notes that the agency has "considerable resources" and if the EEO
office does not "then that is entirely because it [the agency] has chosen
not to put those resources into complying with the anti-discrimination
laws." Finally, complainant notes that the agency's current disposition
of investigations in accordance with the regulatory timeframe should
not affect the Commission's decision about the agency's past actions in
complainant's case.
ANALYSIS AND FINDINGS
Review of the AJ Decision
The Commission's regulations afford broad authority to AJs for the
conduct of hearings. See 29 C.F.R. � 1614.109 et seq.; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (MD-110),
Ch. 7, Sec. III(D) (November 9, 1999). An AJ has inherent powers
to conduct a hearing and to issue appropriate sanctions, including a
default judgment. See id.; Matheny v. Department of Justice, EEOC Request
No. 05A30373 (April 21, 2005); Rountree v. Department of the Treasury,
EEOC Appeal No. 07A00015 (July 17, 2001).
Specifically, our regulations provide that where a party, inter alia,
fails to respond to an order of an AJ, the AJ may, as appropriate,
take action against the non-complying party pursuant to 29 C.F.R. �
1614.109(f)(3), i.e., an AJ may: (1) draw an adverse inference
that the requested information would have reflected unfavorably on
the non-complying party; (2) consider the requested information to
be established in favor of the opposing party; (3) exclude other
evidence offered by the non-complying party; (4) issue a decision
fully or partially in favor of the opposing party; or (5) take other
action deemed appropriate, e.g., payment of costs and expenses by the
non-complying party. Id. Before taking any of the actions authorized
by the Commission's regulations, an AJ must first issue a Notice to Show
Cause to the non-complying party. MD-110, Chapter 7, Section III(D),
fn. 6; see DaCosta v. Department of Education, EEOC Appeal No. 01995992
(February 25, 2000).
Having reviewed the matter, we find that the AJ's decision to sanction
the agency was proper. The AJ duly notified the agency, by order
dated January 30, 2007, that it must show good cause for its failure to
complete the investigation of complainant's complaint within 180 days of
the date on which the complaint was filed. The agency, as noted above,
claimed that it did not fail to investigate, but merely delayed the
investigation, and that complainant had not been adversely affected by
the delay. The agency further claimed that complainant has a history
of abusing the EEO process2 and that a decision in favor of complainant
would harm the VA Medical Center, as opposed to the agency entity that
is responsible for conducting EEO investigations.
Plainly, the AJ did not credit the agency's explanation as "good cause"
for its failure to timely investigate the complaint. We note that the
agency cited no authority in support of the proposition that willful delay
in processing a complaint is perforce less harmful to a complainant's
cause, nor less a violation of the integrity of the EEO process, than
the flat-out refusal to investigate a complaint.
Further, the agency has cited no authority in support of its argument
that its delay should be excused because of financial constraints.
We have seen this argument raised before in the context of disability
accommodation. It is well-settled that an agency may not establish
undue hardship as a defense to providing reasonable accommodation based
on the financial resources of one component of its operations. Rather,
we look at the agency's financial resources as a whole. See Preston
v. U.S. Postal Service, EEOC Appeal No. 0120054230 (August 9, 2007);
29 C.F.R. � 1630.2(p). Likewise, when considering whether an agency has
the fiscal resources to comply with the requirements of the EEO process,
it is appropriate to look to the agency as a whole. As complainant has
persuasively argued, it is the agency's decision as to how it allocates
its funding; the agency cannot expect to evade the consequences of its
funding decisions.
The agency's delay in completing the investigation within the 180-day
regulatory period is no small non-compliance matter. Such a delay
warrants a sanction. See, e.g., DaCosta v. Department of Education,
supra (agency's lengthy delay in initiating and completing investigation
of complaint within 180 days of filing was clear violation of EEO
regulations, and of EEOC AJ's orders, which warranted sanction of
agency).
Determination of the Sanction
In general, the Commission has held that sanctions, while corrective,
also act to prevent similar misconduct in the future and must be tailored
to each situation, applying the least severe sanction necessary to respond
to the party's failure to show good cause for its actions, as well as to
equitably remedy the opposing party. See Gray v. Department of Defense,
EEOC Appeal No. 07A50030 (March 1, 2007); Rountree v. Department of the
Treasury, supra; Hale v. Department of Justice, EEOC Appeal No. 01A03341
(December 8, 2000). The Commission has emphasized that the purpose of a
sanction is to deter the underlying conduct of the non-complying party.
See Barbour v. U. S. Postal Service, EEOC 07A30133 (June 16, 2005).
The factors pertinent to "tailoring" a sanction, or determining whether
a sanction is, in fact, warranted, include: (1) the extent and nature
of the non-compliance, including the justification presented by the
non-complying party; (2) the prejudicial effect of the non-compliance
on the opposing party; (3) the consequences resulting from the delay in
justice, if any; and (4) the effect on the integrity of the EEO process.
Gray v. Department of Defense, supra; Voysest v. Social Security
Administration, EEOC Appeal No. 01A35340 (January 18, 2005).
We conclude that the default judgment in complainant's favor is warranted
in this case for the reasons which follow. The agency's argument
emphasizes that the delay in completing the investigation was very short
(62 days), and that the cause of the delay was not an intentional act
designed to prejudice complainant personally. The agency also argued
that the complainant did not suffer any actual prejudice caused by
the delay. However, given the length of time that the processing of a
federal sector EEO complaint can take, any delays past the time frames
in the regulations can impact the outcome of complainant's claims.
Witnesses may retire or leave the agency, often without notice, or
documents may be misplaced or destroyed (either intentionally or not)
when the responsible party is not notified to maintain the documents as
relevant to an on-going EEO investigation. The agency's assertion that
complainant did not suffer any prejudice is speculative, at best.
Although the agency's argument focuses on the first three factors, which
consider the impact of the agency's non-compliance on an individual
complainant, we find that in the case where an agency has not initiated
an investigation that could reasonably be completed within the 180-day
time frame, the fourth factor, the effect on the integrity of the EEO
process, is paramount. Protecting the integrity of the 29 C.F.R. Part
1614 process is central to the Commission's ability to carry out its
charge of eradicating discrimination in the federal sector. As we
noted in our previous decision, the Commission has the inherent
power to protect its administrative process from abuse by either
party and must insure that agencies, as well as complainants, abide
by its regulations. We have previously issued cases in which we have
affirmed actions taken by AJs which were designed to bring to account
an agency's non-compliance with the regulations or with Orders issued
by an AJ. See Matheny, supra (Commission affirmed its right to issue
default judgments); Waller v. Department of Transportation, EEOC Appeal
No. 0720030069 (May 25, 2007), request for reconsideration denied,
EEOC Request No. 0520070689 (February 26, 2009) (Commission affirmed
its right to issue monetary sanctions in the administrative process).
See also Footracer v. U.S. Postal Service, EEOC Appeal No. 01A46020
(September 25, 2005) (Commission affirmed adverse inference drawn by
AJ when agency witnesses discussed testimony with one another); Elston
v. Department of Transportation, EEOC Appeal No. 07A50019 (October 18,
2005), request for reconsideration denied, EEOC Request No. 05A60283
(January 5, 2006) (Commission affirmed default judgment issued by AJ).
In the instant case, the agency had not assigned an investigator
until November 9, 2006, 192 days after complainant had filed her
formal complaint, (May 1, 2006). Under the regulation at 29 C.F.R. �
1614.108(e), an agency has 180 days from the filing of a formal
complaint to complete the investigation. At day 180, the agency
may ask the complainant to extend the period for investigation for an
additional 90 days. Alternatively, a complainant may request a hearing
before an AJ after day 180, even if no investigation has been completed.
The regulations contemplate that the AJ would then oversee the completion
and development of the record in that instance, pursuant to 29 C.F.R. �
1614.109(a). Here, as noted above, the investigation was not commenced
until day 192, and complainant requested a hearing on day 197.3
In the similar cases of Reading v. Department of Veterans Affairs,
EEOC Appeal No. 07A40125 (October 12, 2006) and Lomax v. Department of
Veterans Affairs, EEOC Appeal No. 0720070039 (October 2, 2007), request
for reconsideration denied, EEOC Request No. 0520080115 (December 26,
2007),4 the agency waited until past day 180 to begin an investigation.
An AJ issued a default judgment in Reading when the agency had failed to
assign an investigator until after the 180-day period had passed, failed
to provide the AJ with the investigative file when ordered and failed
to provide any reason to the AJ for its failure to do so. Our decision
in that case affirmed the importance of the agency's compliance with the
regulations and its obligation to complete a prompt, fair, and impartial
investigation of a complainant's complaint. We also emphasized the
Commission's inherent power to protect the administrative process from
abuse by either party. In Lomax, we affirmed the issuance of a default
judgment, also for failure to conduct a timely investigation.5 We again
emphasized our power to protect the integrity of the EEO process, and
noted that the "agency's internal situation cannot be used as a defense
to its failure to comply with the Commission's regulations."
The agency argued that the facts in the instant case are similar to those
in Gray v. Department of Defense, supra, and that as precedent, Gray would
dictate that the default judgment be reversed. We distinguish this case
from the facts in Gray, in that in the instant case, the agency had not
begun the investigation until after the 180-day period had expired and
complainant had requested a hearing. In Gray, however, the agency had
begun the investigation 55 days into the 180-day period, and was delayed
from completing it, in part, by the actions of the complainant when
she disagreed with the definition of the issues to be investigated, and
asked the investigator for an extension of time to complete her rebuttal
statement, notwithstanding that she had already requested a hearing.
We found in Gray that, although a sanction was appropriate for failure
to produce the investigative record in accordance with the AJ's Order
to Show Cause, the AJ had abused her discretion in the selection of a
default judgment as a sanction, and should have more narrowly tailored
the sanction imposed. In Gray, unlike in the case at bar, the agency
had engaged in actions showing intent to comply with our regulation
specifying that an investigation shall be completed in 180 days.
Thus, we find that a sanction in the form of a default judgment is the
appropriate sanction in this case. This decision turns on the fact that
the agency failed to commence an EEO investigation that could reasonably
be completed within the 180-day period following the filing of the formal
complaint, as required by the regulations.
Remedy Following Default Judgment
Turning now to the issue of the consequences of a default judgment in
favor of complainant which is the result of a sanction levied against an
agency, we note that the remedy phase will take on greater importance
in these instances. In Matheny v. Department of Justice, supra, we
provided some guidance for AJs to use in crafting the appropriate remedy
to award.
The guidance provided is found in the discussion in Matheny relating to
the applicability of Federal Rule of Civil Procedure 55(d) (formerly
55(e)) to default judgments issued in the Commission's administrative
process. Fed. R. Civ. P. 55(d) states that: "A default judgment may be
entered against the United States, its officers, or its agencies only
if the claimant establishes a claim or right to relief by evidence that
satisfies the court." We noted: "As the Commission looks to the Federal
Rules of Civil Procedure for guidance, even as we are not strictly
bound by them, we find that a judgment such as that entered by the AJ
in the instant case would not be precluded under the Rules." The AJ in
Matheny noted "instances where even the incomplete record before [her]
contained evidence of the agency's retaliatory animus toward complainant"
and support for his claims of pay disparity. We stated then that the
finding by the AJ that complainant had made the minimal showing of
support for his claims rendered the entering of a default judgment an
appropriate action, because complainant's case was therefore supported
by evidence satisfactory to the AJ.
Following a decision to issue a default judgment for complainant, an
AJ would then need to decide if there was "evidence that satisfies the
court" which established complainant's right to relief. For example, the
establishment of the elements of a prima facie case would be sufficient
to show such a right. An AJ would have at his or her disposal the
"pleadings" and the limited evidence available at that point in the
hearings process. In the absence of a report of investigation, a
complainant should be able to provide, if needed, his or her request for
counseling (i.e., the informal complaint), the EEO Counselor's Report,
the formal complaint (listing the bases and issues of the complaint)
and the agency's letter accepting the complaint for investigation and
defining the claims. At his or her discretion, the AJ could ask for an
affidavit with more information, or could take limited testimony from
the complainant in person.
In addition, in the remedy phase, the complainant would provide evidence
regarding entitlement to remedies such as back pay and compensatory
damages, both pecuniary and non-pecuniary, as well as any other claimed
remedy. In a case such as the one at bar, the AJ would have to find that
the complainant is qualified for the position at issue, thus negating
the agency's concern that complainant could be awarded a position for
which she is not minimally qualified.
In the instant case, we find, in our review of record during the
processing of this request for reconsideration, that complainant applied
under the vacancy announcement posted December 27, 2005 for the Nurse
Manager, Unit 2E-Ambulatory Procedure Unit, Preadmission Screening
Clinic position. She was qualified for the position. The record
evidence establishes that she was one of 5 applicants interviewed for the
position, and that she scored second highest following the interviews
for the position. The highest scoring candidate, not of her protected
class (white), was selected instead. With respect to her claim that
she was not assigned duties that would enable her to be promoted,
we find that complainant sufficiently alleged that other employees,
not of her protected class, were given detail assignments that would
place them in a better position to receive promotions should a vacancy
arise. The evidence before us satisfies the Commission that complainant
is entitled to equitable remedies as a result of the default judgment
in her favor.6
Additionally, we find that complainant should be given an opportunity
to establish her entitlement to compensatory damages. Although in her
decision of April 4, 2007, the AJ found that complainant's submission of
evidence in support of her claim for compensatory damages was untimely,
we find that the AJ's provision of 15 days to provide that evidence was
an inadequate amount of time to obtain and submit the necessary medical
documentation. Therefore, the case is remanded to the appropriate
Hearings Unit for a determination of complainant's entitlement to
compensatory damages.7 We note that the imposition of a default sanction
would not carry through to the remedy phase of the hearings process, such
that an agency would be barred from submitting a rebuttal to complainant's
claims for compensatory damages. However, this would not be an opportunity
for the agency to try to disprove complainant's actual complaint.
CONCLUSION
After reconsidering the previous decision and the entire record,
the Commission finds that the request fails to meet the criteria of
29 C.F.R. � 1614.405(b), and it is the decision of the Commission to
deny the request, but to modify the previous Order. The decision in
EEOC Appeal No. 0720070045 is modified as noted in the Order, below.
There is no further right of administrative appeal on the decision of
the Commission on this request. The agency shall comply with the Order
as set forth below.
ORDER
1. Within thirty (30) days of the receipt of this decision, the agency
shall retroactively promote complainant to the position of Nurse Manager,
Unit 2E-Ambulatory Procedure Unit, Preadmission Screening Clinic, or a
substantially equivalent position, with back pay and benefits;
2. The agency shall ensure that complainant has equal access to future
developmental details and assignments if she requests them;
3. Within sixty (60) days of receipt of this decision, the agency shall
process complainant's petition for attorney's fees and costs incurred
for the successful defense of the agency's initial appeal, and of this
request for reconsideration, in accordance with 29 C.F.R. � 1614.501; and
4. The agency shall submit to the Hearings Unit of the EEOC Richmond
Area Office the request for a hearing on complainant's entitlement to
compensatory damages within fifteen (15) calendar days of the date this
decision becomes final. The agency is directed to submit a copy of the
complaint file to the EEOC Hearings Unit within fifteen (15) calendar days
of the date this decision becomes final. The agency shall provide written
notification to the Compliance Officer at the address set forth below that
the complaint file has been transmitted to the Hearings Unit. Thereafter,
the Administrative Judge shall examine the issue of complainant's
entitlement to compensatory damages, both pecuniary and non-pecuniary,
consistent with this decision. The AJ shall issue a decision on the
remedies awarded in accordance with 29 C.F.R. � 1614.109 and the agency
shall issue a final action in accordance with 29 C.F.R. � 1614.110.
POSTING ORDER (G0900)
The agency is ordered to post at its Veteran's Affairs Medical Center in
Richmond, Virginia copies of the attached notice. Copies of the notice,
after being signed by the agency's duly authorized representative, shall
be posted by the agency within thirty (30) calendar days of the date
this decision becomes final, and shall remain posted for sixty (60)
consecutive days, in conspicuous places, including all places where
notices to employees are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any other material. The original signed notice is to be
submitted to the Compliance Officer at the address cited in the paragraph
entitled "Implementation of the Commission's Decision," within ten (10)
calendar days of the expiration of the posting period.
ATTORNEY'S FEES (H0900)
If complainant has been represented by an attorney (as defined by
29 C.F.R. � 1614.501(e)(1)(iii)), he/she is entitled to an award of
reasonable attorney's fees incurred in the processing of the complaint.
29 C.F.R. � 1614.501(e). The award of attorney's fees shall be paid
by the agency. The attorney shall submit a verified statement of fees
to the agency -- not to the Equal Employment Opportunity Commission,
Office of Federal Operations -- within thirty (30) calendar days of this
decision becoming final. The agency shall then process the claim for
attorney's fees in accordance with 29 C.F.R. � 1614.501.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30) calendar
days of the completion of all ordered corrective action. The report shall
be submitted to the Compliance Officer, Office of Federal Operations,
Equal Employment Opportunity Commission, P.O. Box 77960, Washington,
DC 20013. The agency's report must contain supporting documentation,
and the agency must send a copy of all submissions to the complainant.
If the agency does not comply with the Commission's order, the complainant
may petition the Commission for enforcement of the order. 29 C.F.R. �
1614.503(a). The complainant also has the right to file a civil action
to enforce compliance with the Commission's order prior to or following
an administrative petition for enforcement. See 29 C.F.R. �� 1614.407,
1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the complainant
has the right to file a civil action on the underlying complaint in
accordance with the paragraph below entitled "Right to File A Civil
Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for
enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999).
If the complainant files a civil action, the administrative processing of
the complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. You have the
right to file a civil action in an appropriate United States District
Court within ninety (90) calendar days from the date that you receive
this decision. If you file a civil action, you must name as the defendant
in the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Stephen Llewellyn
Executive Officer
Executive Secretariat
_____09/25/09_____________
Date
1 29 C.F.R. � 1614.108(g) states, in relevant part, that: "Where the
complainant has received the notice required in paragraph (f) of this
section or at any time after 180 days have elapsed from the filing of
the complaint, the complainant may request a hearing by submitting a
written request for a hearing directly to the EEOC office indicated in
the agency's acknowledgment letter."
2 The agency did not offer any proof of complainant's alleged abuse
of the EEO process. The Commission's own records do not show that
complainant has filed excessive numbers of appeals of final agency
decisions. In point of fact, the instant case is the only one in the
Commission's records of appeals. Contra Stoyanov v. Department of the
Navy, EEOC Appeal Nos. 01A60843, 01A61391, 01A61781, 01A62205 & 01A62852
(August 31, 2006). Nor does the agency submit a record of numerous,
frivolous EEO complaints filed by complainant.
3 We note that complainant previously had requested a hearing before
the full 180 days allotted for investigation had elapsed. The agency
was not sanctioned in connection with the show-cause order issued by
the AJ at that time, and complainant's subsequent hearing request was
in conformance with our regulations.
4 We note that the same agency regional EEO office was responsible for
assigning an investigator in Lomax, Reading and the instant case.
5 We note that the complainant in Lomax filed his formal complaint four
days after the complainant in this case, and the agency assigned an
investigator on the same day as in the instant case.
6 For the sake of judicial economy and expediency in completing the
processing of this complaint, we make these findings within the context
of the request for reconsideration rather than remanding the case to an
AJ for further proceedings on the issue of complainant's entitlement to
equitable remedies.
7 The AJ noted in her decision that complainant did not submit a request
for attorney's fees and costs incurred in the hearings process.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, DC 20507
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