Regina Mathis, Complainant,v.Ray Maybus, Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 8, 2009
0720080006 (E.E.O.C. Oct. 8, 2009)

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