A recent EEOC decision granted a sanction of default judgment against the Department of the Army for its failure to produce the complaint files as ordered by the EEOC. In Robinson v. Dept. of the Army, EEOC Case No. 531-2012-00210X (BFO October 17, 2012), on November 3, 2010, the complainant filed a formal complaint, alleging that the agency subjected her to discrimination on the basis of sex (female) and reprisal. The complainant also had a second case, in which she alleged that she was subjected to discrimination and reprisal when she was issued a "1" or "unacceptable" performance rating for the 2010 appraisal year.
Following some litigation, on July 28, 2011, the EEOC Office of Federal Operations ordered the agency to issue a copy of the investigative file within 150 days, or by December 5, 2011. Robinson v. Dept. of the Army, EEOC Appeal No. 012011526. The complainant requested an EEOC hearing on December 5, 2011, a copy of which was sent to the Army. However, upon receiving the request for EEOC hearing, the agency did not provide a copy of the Report of Investigation (ROI) for either complaint as required by regulations and by the EEOC’s order. As a result of the agency’s failure, on March 12, 2012, the administrative judge (AJ) issued an order directing the agency to produce the complaint file. However, the agency did not respond to the AJ’s order. Thus, on July 27, 2012, the AJ issued a Show Cause Order, demanding a written explanation from the agency why a decision in favor of the complainant (default judgment) should not be issued by August 10, 2012.
When it received the order, the Army finally submitted the complaint files to the AJ on August 2, 2012. On August 7, 2012, it submitted its written explanation in response. Among other arguments for its failure and delay in complying with the AJ’s orders, the Army contended that it had personnel and staffing issues, and had consistently acted in good faith. Moreover, the agency argued that in the absence of bad faith on its part, it would be unjust to issue default judgment against it.
The AJ rejected the agency’s arguments, and found that the Army had failed to establish good cause why it had failed to submit the complaint files. The AJ concluded that there was no indication that the agency had not received the complainant’s request for an EEOC hearing in December 2011, and thus should have produced the complaint files at that time. Moreover, the AJ cited previous EEOC cases, which had held that personnel/staffing issues and arguments that the agency had acted in good faith, were not sufficient to show good cause for not complying with EEOC orders.
Further, the AJ pointed out that the agency failure to produce the complaint files had delayed the processing of the case by over 200 days. The AJ concluded that when an agency does not timely process an EEO complaint, the most important factor in determining the sanction to be imposed on the agency is what effect the failure has on the integrity of the EEO process.
After imposing default judgment, the AJ next needed to determine whether evidence existed that would establish the complainant’s right to relief (monetary damages, other remedies). In reviewing the Reports of Investigation, the AJ concluded that there was ample evidence that the complainant was entitled to relief. Thus, the AJ concluded that the complainant must be offered the opportunity to produce evidence regarding remedies, and the agency afforded an opportunity to respond to the complainant’s evidence.
Edward Passman, a founding principal of Passman& Kaplan, PC, is co-counsel in this case.
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