Sarah McKinin, a senior associate at The Federal Practice Group, authors a column for a recent high profile EEOC decision.
Posted By smay || 15-Feb-2019
EEOC Lays the Lumber to GSA in Six Figure Default Judgement Damages Award
Many federal employees who have filed a federal sector EEO complaint come away from the experience with the firm opinion that the process is deeply unfair and the playing field is tilted toward agencies. One factor feeding that belief is the perception that there is a disparity in how harshly an administrative judge will respond when, on the one hand, an EEO complainant misses a deadline, compared to what happens when an agency misses one. When an employee pursuing an EEO complaint either misses a deadlines or fails to comply with a procedural requirement, they often suffer severe consequences, including the possible dismissal of their case. By contrast, federal agencies often ignore similar deadlines and requirements with apparent impunity. For example, it is not surprising to see a dismissal of a formal EEO complaint detailing years of unlawful harassment, because the employee filed that complaint even one day past the very short 15-day deadline to submit a formal complaint after the conclusion of the informal complaint process. By contrast, despite the requirement that federal agencies complete an investigation of a formal EEO complaint within a much more forgiving 180 days, federal agencies are rarely held accountable for missing that deadline, even when, as sometimes occurs, they a full year – twice the allotted time – to get the investigation done all too often, agencies get away with this kind of blatant noncompliance. The exceptions to this are all too rare and worthy of note.
One such recent decision is Chere S. v General Service Administration, Appeal No. 0720180012 (Nov. 30, 2018), where the Commission shows that when it chooses, it can bridge that gap and level the playing field. On appeal, the Commission determined that the EEOC Administrative Judge did not abuse her discretion when she issued a default judgment sanction against GSA after it failed to heed her warning to stop filing frivolous motions, which the Commission found “accomplished nothing other than to clog the pipeline.” See id. Notably, several of GSA’s motions called for dismissal of the complaint based upon various jurisdictional and timeliness arguments, to include that the employee failed to timely contact an EEO counselor within 45 days of the claim arising, though the Agency accepted, investigated, and conducted formal discovery and depositions before ever raising this issue. The Judge struck down these motions as“eleventh hour, last-ditch attempts” for dismissal.See id.
More, the Commission upheld the Judge’s award of $180,000 in compensatory damages to the complainant, despite GSA’s arguments that the Judge never required the complainant to show a prime faciecase in a consolidated matter, which it argued, was a prerequisite to entitlement to this relief. The Commission disagreed, explaining
[Ee] stablishing a prima faciecase is not the only way to entitle a complainant to relief. The effect of default judgment against the Agency is a finding of discrimination in favor of Complainant.
See id., citing Montes-Rodriguez v. Dep’t of Agric.,EEOC Appeal No. 0120080282 (Jan. 12, 2012), req. for recon. den’d,EEOC Request No. 0520120295 (Dec. 20, 2012). Thus, the Commission upheld the default judgment and found the award of compensatory damages to be an appropriate and valid remedy.
Federal EEO complainants should take heart in light of Chere S.and the slow but growing trend within the past few years of the EEOC to issue default judgment sanctions against federal agencies intent on violating the procedures in the Commission’s regulations by ensuring that they both understand their agency’s obligations during the EEO complaint process and raise any violations to the administrative judges at the appropriate time. In general, most complainants will have to prove their cases and win on their merits, but it is reassuring to know that now and then, the Commission will hold agencies to as strict a standard as it does the employee.
Sarah McKinin is a senior associate at The Federal Practice Group and has substantive experience in federal employment. The Federal Practice Group represents employees seeking reasonable accommodations for disabilities and employees who have been subjected to discrimination or reprisal related to their disabilities.