0720080006
10-08-2009
Regina Mathis, Complainant, v. Ray Maybus, Secretary, Department of the Navy, Agency.
Regina Mathis,
Complainant,
v.
Ray Maybus,
Secretary,
Department of the Navy,
Agency.
Appeal No. 0720080006
Hearing No. 570-2006-00070X
Agency Nos. DON 05-00033-01944, DON 05-00033-001
DECISION
Together with the issuance of its October 12, 2007 final order, the agency
filed an appeal from a portion of the decision of an EEOC Administrative
Judge's (AJ). The AJ found no discrimination occurred as alleged in the
complaint, but the AJ sanctioned the agency for its misconduct immediately
following the hearing of complainant's complaint and ordered the agency
to pay attorney's fees to complainant. The agency implemented the
AJ's finding of no discrimination, but rejected the AJ's order to pay
attorney's fees. The agency requests that the Commission affirm its
rejection of the sanction ordered by the AJ.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a Fiscal Accounting Specialist at the agency's Military Sealift
Command, Navy Yard facility in Washington, D.C. On March 17, 2005,
complainant filed an EEO complaint alleging that she was discriminated
against on the bases of race (Black, African American) and age (46)
when her position description was not upgraded to GS-501-12, and when,
based on retaliation, she was denied her annual performance review,
due April 30, 2006, and a cash award.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an AJ. Complainant requested a hearing and the AJ held
a hearing on June 25 and June 26, 2007. The AJ issued a decision on
August 31, 2007.
In his decision, the AJ found that complainant had not shown that
she was subjected to discrimination on any basis. Specifically,
the AJ found that complainant did not establish a prima facie case of
race or age discrimination because she did not identify any similarly
situated employees who received a non-competitive position upgrade.
Those employees complainant identified either did not occupy jobs with the
same general schedule classification as complainant or possessed relevant
job qualifications (specifically, a college degree) that complainant did
not possess. The AJ also found that complainant was not denied a cash
award and her performance review was not delayed because of reprisal.
While the AJ found that complainant's performance review was delayed,
he found that a preponderance of evidence showed this was more likely
the result of agency inefficiency rather than discrimination. The AJ
further found that a majority of employees did not receive cash awards
and that nothing in the record indicated that this was the result of
discrimination.
Notwithstanding his determination with respect to the claims of
discrimination, the AJ's decision incorporated an earlier Order for
Sanctions, dated August 17, 2007. That Order granted complainant's
motion for sanctions in which complainant argued that complainant had
been prejudiced by the agency's failure to follow the AJ's directions and
instructions regarding the submission of closing briefs and arrangements
to obtain and cite to the hearing transcripts. The AJ ordered the
following sanctions:
1. The [a]gency's post hearing brief is excluded from the record, and
will not be considered in any way when addressing the merits of this
complaint; and
2. The [a]gency is ordered to pay reasonable attorney's fees and costs
to reimburse [c]omplainant for moving for this sanction, reviewing the
Agency's Opposition, reviewing this Order, and any additional time spent
in furtherance of this Order.
The AJ considered complainant's petition for fees associated with the
filing of complainant's motion for sanctions, found the fee petition
to be reasonable, and found that the agency had waived any objection to
the sum requested by complainant. The AJ ordered the agency to pay to
complainant the sum of $1,425.74.1
The agency subsequently issued a final order implementing the AJ's
determination regarding race and age discrimination, but the agency
declined to implement the AJ's Order requiring the agency to pay
complainant's attorney's fees.
On appeal, the agency argues that any instructions the agency may have
violated were too vague to warrant an order for sanctions. Additionally,
the agency argues that the agency would violate the Anti-Deficiency Act
if it paid the attorney's fees and that the Commission's order to pay
monetary sanctions violates the doctrine of sovereign immunity.
ANALYSIS AND FINDINGS
As a preliminary matter, we find that on appeal, neither party
challenges the AJ's finding that no discrimination occurred as alleged
in complainant's complaint and we confine our decision to consideration
of the sanctions ordered by the AJ and rejected by the agency.
The Commission has held that it has independent authority, based in
statute, to issue such rules and regulations that it deems necessary to
enforce the prohibition on employment discrimination, including to issue
sanctions in the administrative hearing process. Matheny v. Department
of Justice, EEOC Request No. 05A30373 (April 21, 2005) (affirming the
AJ's sanction of the agency for failure to timely provide investigative
file); see 42 U.S.C. �2000e-16(c); West v. Gibson, 527 U.S. 212 (1999).
In the instant case, we find the agency's final decision properly rejected
the AJ's order for sanctions. It is not clear from the record that the
agency violated any order or instruction by the AJ regarding the use
of the transcript in the closing brief. We observe from the hearing
transcript, that at the close of the hearing on June 26, 2007, after
discussion with the parties, and given the late hour, the AJ directed that
the closing briefs be submitted by July 6, 2007. Thereafter, according
to the AJ, he instructed the court reporter to prepare and deliver
to him, an original and two copies of the hearing transcript. The AJ
indicated that he, in turn, would provide the transcript to the parties.
According to the AJ, the AJ also instructed the parties to write their
briefs "without benefit of the transcripts," which would likely not be
available to them before their briefs were due. The AJ reasoned that
the parties would not have the transcripts if they were to have instead
presented their closing arguments at the conclusion of the hearing.
According to the AJ, he next received a telephone call on July 3, 2007,
from agency counsel, who advised that the hearing transcript had been
sent directly to the agency (and not to the AJ). The AJ directed agency
counsel to send the transcript to the AJ. On July 6, 2007, one copy
of the transcript arrived from the agency. The AJ stated that he then
telephoned agency counsel and agency counsel told him that only one copy
had been created, not three, and that the agency had asked complainant
if she wanted to order a copy, which complainant declined.
From the record, we note that the parties submitted closing briefs by
July 6, 2007, and that complainant's brief contains no citations to the
hearing transcript, though the agency's brief makes numerous references
to the hearing transcript.
On July 13, 2007, the AJ issued an "Order for Transcripts" in which he
described the instructions he had provided to the parties and the court
reporter and the substance of the telephone exchanges between himself
and the agency. Therein, the AJ ordered the agency to order two copies
of the transcript from the court reporter and to have the copies sent
directly to the AJ, immediately.
We find that nothing in the record shows that the AJ's instructions
immediately following the conclusion of hearing testimony were
memorialized or otherwise recorded at the time of the hearing.2 The
agency argues that the agency never understood the AJ to have forbidden
the parties from citing to the hearing transcript in their closing briefs.
The Commission agrees with the agency that the AJ's order, described
by the AJ, as to write the closing briefs "without benefit of the
transcripts," is not necessarily a prohibition on using the transcripts
in the closing briefs. Forbidding the use of the hearing transcripts
in the closing briefs may have been what the AJ intended, but another
possible interpretation is that it was not expected that the hearing
transcripts would be available in time to cite in the closing briefs.
When the hearing transcripts were available in time to cite in the closing
briefs, it does not appear to be a violation of the AJ's instructions
to cite the hearing transcripts. We agree with the agency, that in this
particular case there was "confusion and uncertainty" as to what the AJ
had orally directed the parties to do.
We consider that the agency actions that precipitated the AJ's Order for
Sanctions all occurred prior to the agency's receipt of the only written
instructions the AJ actually issued on the matter, specifically, the Order
for Transcripts dated July 13, 2007. The record is void of any clear,
written statement of instructions to the parties regarding the hearing
transcripts and closing briefs prior to the time the AJ determined the
agency had violated such instructions. The Commission finds that because
of the lack of clarity in the AJ's instructions combined with the lack
of a written record of such instructions, sanctions may not be properly
imposed in this instance.3
We find the AJ's Order for Sanctions was improper. We therefore AFFIRM
the agency's decision rejecting the AJ's Order for the agency to pay
complainant's attorney's fees.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish 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.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
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. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 8, 2009
__________________
Date
1 We note, as did the agency on appeal, that the AJ's order contains a
typographical error in which the amount of the sanction is also listed
as $1,225.74. We have reviewed the relevant fee petition and find that
the correct sum is $1,425.74.
2 Additionally, we note that the AJ's Order for Transcripts and Order
for Sanctions refer to a number of telephone communications for which
no written record of the exchanges were created.
3 The agency also contended that it lacked the ability to pay
the sanctions, since to do so would violate the Anti-Deficiency
Act. The Anti-Deficiency Act, found at 31 U.S.C. �1341, Limitations
on expending and obligating amounts, is part of the statutes related
to the Congressional appropriations process. The Anti-Deficiency Act
prohibits a government agency from expending funds in excess of the
amount available under its appropriation. See Pub. L. 97-258, Sept. 13,
1982, 96 Stat. 923. Inasmuch as the agency's contention on this point
is premised on its contention that the Commission lacked authority to
issue such sanctions, a line of reasoning we have rejected, we need not
respond further. Waller v. Department of Transportation, EEOC Request
No. 0520070689 (February 26, 2009).
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0720080006
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0720080006