[Redacted], Alline B., 1 Complainant,v.Andrew M. Saul, Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Jan 25, 2021

Appeal No. 0720180028 (E.E.O.C. Jan. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Alline B.,1 Complainant, v. Andrew M. Saul, Commissioner, Social Security Administration, Agency. Request No. 2020004247 Appeal No. 0720180028 Agency No. OCO-14-0859-SSA DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 0720180028 (May 14, 2020). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), 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(c). For the reasons that follow, the Agency’s request is DENIED. ISSUE PRESENTED The issue presented is whether the Agency’s request for reconsideration demonstrates that the underlying appellate decision involved clearly erroneous interpretations of material fact or law or will have a substantial impact on the policies, practices, or operations of the Agency. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2020004247 2 BACKGROUND At the time of events giving rise to the underlying complaint, Complainant worked as a Benefits Authorizer/Claims Representative, GS-11/7, at the Agency’s Office of Earnings and International Workforce Initiatives, Division of International Operations in Baltimore, Maryland. On August 7, 2017, one week prior to a scheduled hearing, the Agency filed a Supplemental Prehearing Report to request several additional witnesses. Complainant objected. The EEOC Administrative Judge (AJ) postponed the hearing and approved the four new fact witnesses but allowed Complainant to take their depositions. Complainant’s attorney deposed the four witnesses. On August 16, 2017, the AJ issued an Order to the Agency to show cause why sanctions should not be imposed for requesting four new fact witnesses and one expert witness that were not previously disclosed during discovery or prior to the Prehearing Conference, “forcing a postponement of the case.” The Agency responded on August 28, 2017, and Complainant replied on September 19, 2017. The AJ issued an Order on October 4, 2017, directing the Agency to pay the costs of Complainant’s post-discovery depositions. Complainant’s attorney submitted to the AJ Complainant’s Verified Fee Petition on February 22, 2018, requesting $7,368.25 in fees and costs. In March 2018, the parties entered into a settlement agreement. The settlement agreement stated that “nothing in this Settlement Agreement shall be deemed an admission, obligation, or waiver of any claim(s) associated with any Sanctions Order issued in this case.” On June 12, 2018, the AJ issued a Memo and Order Imposing Sanctions Pursuant to Show Cause Order and Decision on Attorney’s Fees. The AJ further awarded Complainant attorney’s fees and costs. However, the AJ did not include appeal rights. Shortly thereafter, on June 19, 2018, the AJ issued an Order of Dismissal, dismissing the case because of the March 2018 settlement agreement. Attached to the Order was the Order Entering Judgement addressing the outstanding attorney’s fees and ordering the Agency to pay. The AJ attached a notice informing the parties of their appeal rights and notifying the Agency to issue a final order in accordance with regulations. The Agency was clearly advised that if the final order did not fully implement the AJ’s decision, it should simultaneously file an appeal to the EEOC in accordance with 29 CFR 1614.403. On July 15, 2018, the Agency appealed the dismissal without first issuing a final order. Pursuant to 1614.109(i), if the Agency does not issue a final order within 40 days of receipt of the AJ’s decision, the AJ’s decision shall become the final Agency action. 2020004247 3 In our previous decision, dated May 15, 2020, we dismissed the Agency’s appeal, finding that, because the Agency did not issue a final order adopting or rejecting the AJ’s decision, it had, by default, adopted the AJ’s decision. ARGUMENTS ON RECONSIDERATION In its request for reconsideration, the Agency argues that a final action, as contemplated by § 1614.110, is not applicable because the Sanctions Decision did not address the merits of Complainant’s claims. The Agency further asserts that appealing a sanction decision is not specifically contemplated by EEOC regulations, as the regulations do not set forth specific requirements for such an appeal. The Agency contends that because Complainant was put on notice regarding the Agency’s appeal and submitted an appeal brief, she was not harmed. Finally, the Agency posits that it lacks authority to pay monetary sanctions. In response to the Agency’s request for reconsideration, Complainant asserts that the AJ issued a detailed memorandum which explained the order for award of sanctions against the Agency. Complainant adds that the Agency failed to timely object to the issuance of sanctions and to dispute the award of fees during the hearing process should constitute a waiver of such arguments on appeal. Complainant maintains that the Agency was on notice of the requirement to issue a final order and that the order sanctioning the Agency was not unlawful. ANALYSIS AND FINDINGS Pursuant to 29 C.F.R. § 1614.110, “when an administrative judge has issued a decision under §1614.109(b), (g), or (i), the agency shall take final action on the complaint by issuing a final order within 40 days of receipt the hearing file and the administrative judge’s decision.” EEOC Regulation 29 C.F.R. § 1614.109(i) provides that if an agency does not issue a final order within 40 days of receipt of the AJ's decision in accordance with 29 C.F.R. § 1614.110, the decision of the AJ shall become the final action of the Agency. Therefore, in the instant matter, as the Agency failed to issue a final action, we find that the AJ's decision became the Agency's final action by operation of law. Ela O. v Nat'l Sec. Agency, EEOC Appeal No. 0720130021 (Oct. 30, 2015) (AJ's finding of discrimination became agency's final decision by operation of law where agency failed to take action during the 40-day period). Regarding the Agency’s assertions that the Sanctions Decision did not address the merits of Complainant’s claims and that 29 C.F.R. § 1614.110 is therefore not applicable, we note that 29 C.F.R. §1614.110 is not limited to AJ decisions on the merits. On the contrary, the regulation applies to all final decisions by AJs. Therefore, although the Agency correctly points out that the regulations do not explicitly contemplate appealing a decision on sanctions, we find that a sanctions decision falls within the decisions contemplated in 29 C.F.R. § 1614.109(i) and that 29 C.F.R. § 1614.110 is therefore applicable. 2020004247 4 As for the Agency’s remaining arguments, we remind the Agency that a request for reconsideration is not a second appeal. We find that the Agency’s arguments do not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law or will have a substantial impact on the policies, practices, or operations of the agency. Accordingly, we find that the Agency failed to demonstrate that the Commission should reconsider its appellate decision. After reviewing 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(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0720180028 remains the Commission's decision. 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 The Agency, within 30 calendar days of the date this decision is issued, shall pay to Complainant $5,215.00 in attorney’s fees and $1,379.05 in costs, totaling $6,594.05. The Agency is further directed to submit a report of compliance, as provided in the statement entitled “Implementation of the Commission’s Decision.” IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. 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. 2020004247 5 Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ____________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations January 25, 2021 Date