Fedweek Legal

In a recent decision, EEOC upheld an administrative judge’s (AJ) decision to sanction the Social Security Administration for failing to develop a factual record before hearing and for not following the AJ’s specific orders. See Fox v. Social Security Administration, EEOC Appeal No. 0720050055 (December 24, 2009). The employee worked as an attorney for the agency, and she filed an EEO complaint alleging discrimination on the basis of her sex and age when she not selected for several details and a supervisory attorney position. The employee timely filed a request for an EEOC hearing after the EEO complaint investigation was completed.

The AJ issued an acknowledgment and order that outlined the procedures and deadlines during the hearing process which the employee and the agency were required to follow. It notes that the parties were expected to initiate and complete discovery within 90 calendar days. The employee filed two discovery requests and advised the agency that the report of investigation (ROI) was inadequate and inappropriately redacted. The agency did not assign counsel to the case until two months later, and at that time sent the employee an unredacted copy of the ROI.

The employee requested that the AJ impose sanctions against the agency for submitting a deficient ROI. Shortly thereafter, the employee filed notice of her intention to depose 10 witnesses and filed another motion for sanctions against the agency in the form of attorney fees and costs for failing to develop the record. The employee filed notice of her intent to schedule depositions for 30 employees that were to commence on a date the following month. The agency counsel, two days later, contacted the employee’s attorney to advise that the proposed deposition schedule was not logistically possible. However, the AJ ordered the agency to produce the 30 employees for the depositions that were scheduled to begin in a few days. Yet, the agency notified the employee that it was not prepared to produce the witnesses for deposition and therefore, the agency was not going to appear for the depositions.

The employee asked for sanctions against the agency for its conduct and requested that the AJ compel the agency to cooperate with the AJ’s order to produce the witnesses for deposition. The agency replied that it was willing to cooperate, but that it needed more time to locate and plan for the logistics of the depositions. The AJ issued an order directing the agency to pay the attorneys fees and costs associated with the depositions which were previously scheduled, and the AJ ordered the agency to show cause why a default judgment should not be entered against the agency for its failure to develop the record and its failure to timely proceed with discovery agency’s response was due within 15 days of its receipt of the order.

The agency filed its response to the show cause order and did not contest that it failed to develop the record, but instead, the agency blamed the outside contracting service that conducted the EEO investigation. The AJ rejected the agency’s claim that it did not control the EEO investigation and held that the agency failed to adequately develop the record prior to hearing, failed to respond to the employee’s discovery requests, failed to comply with the AJ’s order to comply with the deposition schedule and failed to timely respond to the AJ’s order to show cause. Accordingly, the AJ ordered all relief requested by the employee, including placement into the supervisory attorney position with back pay, compensatory damages, correction of leave records and attorney fees. A second AJ was appointed to determine the amount of attorney fees and compensatory damages. The agency appealed both the default judgment and damages decisions to the Commission.

The Commission rejected the agency’s claim that the default judgment in favor of the employee was an excessive sanction. Although the agency provided a non-redacted copy of the ROI, it failed to supplement the missing information. At a minimum, a record for a non-selection case should include the applications for those who made the best qualified list, statements from all recommending and selecting officials and interview panel notes. The fact that the agency contracts with an outside company to conduct EEO investigations does not absolve the agency from the responsibility to ensure that the ROI is adequately developed on which to base a decision. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. The purpose of discovery is to perfect the record in the hearing process, but it is not a substitute for a complete investigation.

Further, the AJ’s acknowledgment and order clearly spelled out the applicable deadlines for the agency to respond to the employee’s discovery requests and to complete the full discovery process. The agency failed to comply and cannot establish good cause because the basis for its failures is due to its inactions throughout the discovery process. Accordingly, the Commission held that the AJ’s decision to sanction with a default judgment was proper given the agency’s failure to develop the investigative record, its disregard for the time frames contained in the acknowledgment and order and subsequent AJ’s order, and its failure to name a representation before 60 of the 90 days allotted to discovery had passed. Additionally, the default judgment sanction was proper as the Commission must insure that agencies, as well as employees, abide by EEOC regulations.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com