Fedweek Legal

On rare occasions, an employee may receive a judgment in his or her favor without proving discrimination or retaliation. Such judgments are referred to as default judgments. Default judgments are issued by the fact finder, such as an administrative judge. These types of judgments are reserved for egregious circumstances-for example, where the employer has failed to process the employee’s complaint pursuant to the EEOC’s regulations or failed to defend itself at the EEO hearing, without providing good cause for its actions or inaction. The authority for issuing sanctions, including a default judgment, is found in 29 C.F.R. subsections 1614.108 and 1614.109.

Two instances where default judgments have been issued against an employer include the untimely investigation of an EEO complaint and the untimely appearance of the agency’s representative at an EEO hearing. Employers that fail to investigate EEO complaints until long after the 180-day investigation period has expired run the risk of default judgment. The rationale for default judgment in this case is that it is common for federal employees (for example, alleged discriminating/retaliating officials and witnesses) to move, go to work in the private sector, or become unavailable to testify. Other times, records held in the employer’s system of records necessary for the employee’s case are disposed of or are destroyed after long periods of time.

Default judgments may be issued where an employer has not investigated a complaint until after persons with information relevant to the complaint have become unavailable or documents containing critical information no longer exist, as the employee is denied the opportunity to collect evidence which may expose the employer to liability. See DaCosta v. Department of Education, EEOC Appeal No. 01995992 (February 25, 2000); Cornell v. Department of Veterans Affairs, EEOC Appeal No. 01974476 (November 24, 1998).

Another situation where the EEOC has issued a default judgment is unexcused untimeliness at hearings. Under 29 C.F.R. section 1614.109, EEOC administrative judges have the authority to regulate the scheduling and conduct of a hearing. Although it might not be surprising that the EEOC would issue a default judgment against a party for not attending a hearing, the EEOC has sustained at least one administrative judge’s decision to issue default judgment against an agency because its representative arrived at the hearing over an hour after the hearing was scheduled to start, without showing good cause for the delay. See Magruder v. U.S. Postal Service, EEOC Appeal No. 01984820 (March 17, 1999).

Sanctions are not the norm, and default judgments are unusual. Thus, the employee should not substitute diligently pursuing his or her EEO complaint, in anticipation of such a ruling. The employee bears the burden of proving discrimination by a preponderance of the evidence. Notwithstanding the infrequency of default judgments, the risk of such a ruling may help an employee to motivate employers to promptly investigate EEO complaints or to comply with administrative judges’ orders.

** 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. **