2018 Federal Sector Training Conference Update on Sanctions Terri Gimbrere – Office of Federal Operations Bryan Douglas – Birmingham District Office Amy Weinhaus – St. Louis District Office August 29, 2018

Authority for sanctions 29 C.F.R. § 1614.108(c)(3) - for defects in the investigation, allows “decisionmaker” or Commission on appeal to sanction 29 C.F.R. § 1614.109(f)(3) - Administrative Judge may sanction 29 C.F.R. § 1614.404(c) – on appeal, when requested information not submitted Guidance in MD-110 (Chaps. 6, 7, 8, and 9) and in the AJ Handbook (Chap. 6)

Basic language (i) Draw an adverse inference that the requested information, or the testimony of the requested witness, would have reflected unfavorably on the party refusing to provide the requested information; (ii) Consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party; (iii) Exclude other evidence offered by the party failing to produce the requested information or witness; (iv) Issue a decision fully or partially in favor of the opposing party; or (v) Take such other actions as it deems appropriate.

Overarching principles Integrity of the EEO process to be protected Tailoring of sanction to infraction committed by party Deter future conduct Equitably remedy harm incurred by opposing party

Order to Show Cause Sanctions require appropriate notice of the intention to issue a sanction, the possible sanction involved, and an opportunity to respond before issuance (fairness to the parties) A Motion from one of the parties requesting imposition of sanctions can function as notice Found in MD-110; AJ Handbook

Parties who may be sanctioned: Agencies Complainants Representatives

Sanctions against agencies Standard on appeal is abuse of discretion Imposition of an excessive sanction, where a lesser one would be more appropriate, may constitute an abuse of discretion Tailoring of sanction to action committed by party – least sanction necessary to respond to party’s failure to show good cause and to equitably remedy opposing party Most often seen – Default judgments, adverse inferences, excluding evidence, attorney’s fees, discovery costs

Abuse of discretion Need to tailor sanction to infraction Factors pertinent to “tailoring” a sanction, or determining whether a sanction is warranted, include: (1) the extent and nature of the non-compliance, including the justification presented by the non-complying party; (2) the prejudicial effect of the non-compliance on the opposing party; (3) the consequences resulting from the delay in justice, if any; and (4) the effect on the integrity of the EEO process.

Main cases Matheny v. Department of Justice, EEOC Appeal No. 07A00045 (December 6, 2002), request for reconsideration denied, EEOC Request No. 05A30373 (April 21, 2005) Waller v. Department of Transportation, EEOC Appeal No. 0720030069 (May 25, 2007), request for reconsideration denied, EEOC Request No. 0520070689 (February 26, 2009)

Default judgment How to determine the remedy? Royal v. Veterans Affairs, EEOC Request No. 0520080052 (Sept. 25, 2009) – complainant has to have established a prima facie case to get full relief Cox v. Social Security Administration, EEO Appeal No. 0720050055 (Dec. 24, 2009) - Agency argued awards of damages and fees was inappropriate based on default judgment with no finding of discrimination, but the OFO upheld the damages award, including attorney’s fees Montes-Rodriguez v. Department of Agriculture, EEOC Appeal No. 0120120295 (Jan. 12, 2012) – Awarded compensatory damages and attorney’s fees after default judgment even though complainant could not establish a prima facie case. This indicates that a complainant who cannot prove a prima facie case may still be entitled to compensatory damages and fees on a default judgment, but not equitable relief.

Sanctions at the Appellate Stage Vu v. Social Security Administration, EEOC Appeal No. 0120072632 (Jan. 20, 2011) - Agency failure to submit complete file on appeal, despite repeated requests from OFO, warranted sanction which vacated AJ’s summary judgment and remanded complaint for a full hearing on the merits, at which the agency would have to pay complainant’s attorney’s fees. Chattopadhyay v. Dep’t of Health and Human Services, EEOC Appeal Nos. 0120081177 and 0120091142 (Sept. 28, 2012) - Agency failed to submit complete hearing record on appeal, despite requested requests for specific information and hearing transcript. AJ decision was vacated and complaint remanded for a new hearing, with the agency to pay complainant’s attorney’s fees at new hearing.

Sanctions at the appellate stage Tammy S. v. Defense Intelligence Agency, EEOC Appeal No. 0120084008 (June 6, 2014), request for reconsideration denied, EEOC Appeal No. 0520140438 (June 4, 2015) - Agency sanctioned for failure to adhere to 1614 process, delay in issuance of FAD, improper behavior of General Counsel’s office – ordered training for EEO and GC Offices regarding their responsibilities concerning EEO case processing and the appropriate role of an Office of General Counsel in the EEO process. Talahongva-Adams v. Dep’t of the Interior, EEOC Appeal No. 0120081694 (May 28, 2010) – AJ issued default judgment for failure to file a complete complaint file or even to initiate investigation, on appeal agency failed to comply with 29 C.F.R §1614.403(e) to submit the complaint file - ordered training for EEO management officials regarding their responsibilities concerning case processing.

Sanctions against complainants When an AJ issues a sanction against a complainant in the hearings process, it is fairly well settled that the maximum appropriate sanction for misconduct such as failure to follow AJ Orders, failure to respond to discovery requests, to file pre-hearing statements or to appear at the hearing, is to dismiss the complainant’s hearing request. Upon dismissal of the hearing request, the AJ should remand the complaint to the agency for a decision to be issued on the merits of the complaint. AJ should not “dismiss” the complaint. If an agency then merely “implements” the AJ’s dismissal, in effect dismissing the complaint, OFO will remand the complaint to the agency to render a decision on the merits.

Sanctions against complainants In cases where the complainant has engaged in contumacious conduct, the Commission has upheld the dismissal of the complainant’s entire complaint. The contumacious conduct standard is not easily met by the majority of uncooperative behavior by complainants in the hearing process. Y. Stoyanov v. Dep’t of the Navy, EEOC Appeal Nos. 0120113142, 0120113817, 0120114019 (Dec. 6, 2011) – egregious behavior by complainant in abusing EEO process. See also Y. Stoyanov . Dep’t of the Navy, EEOC Appeal Nos. 0120113931-3936 (Oct. 11, 2012) (dismissal from hearing process affirmed for contumacious conduct, but remanded for decisions on merits by Agency)

Use of sanctions in the hearings process Sanctions: Impact on Fairness, Integrity of the EEO Process, and Case Management To Show or Not to Show Cause? Untimely Response to Order Failure to Appear at Initial Conference or Other Conferences Failure to Respond to Discovery at All

Use of sanctions in the hearings process Tools of the Trade OFO Cases EEO MD-110 AJ Handbook Peers

Sanctions against representatives Different authority to do so than against agencies and complainants 29 C.F.R. § 1614.109(e) provides that an AJ may, upon reasonable notice and an opportunity to be heard, suspend or disqualify a representative from representing complainants or agencies in EEOC hearings who refuses to follow the AJ's orders or otherwise engages in improper conduct. EEO MD 110, Chapter 7, Section V governs the exclusion and disqualification/suspension of representatives.

Sanctions against representatives In re Debbie Szeredy, EEOC Appeal No. 1120060001 (June 22, 2006) In re Lamar Sessoms, EEOC Appeal No. 1120060003 (April 7, 2008) In re Charles Burgett, EEOC Appeal No. 1120160001 (April 30, 2018)

Sanctions against representatives Appeals in which the AJ was found to have not followed the certification procedure for suspension or disqualification of a representative Quinones v. Department of Homeland Security, EEOC Appeal No. 01A53109 (March 31, 2006) (but behavior would not have risen to the level of disqualification) Arrendondo v. U.S. Postal Service, EEOC Appeal No. 01A51491 (March 31, 2006) Recent case where AJ said Representative should be disqualified – but process not followed. Joanna V. v. USPS, EEOC Appeal No. 0120162570 (August 15, 2018) (rep is James Wright, case from San Francisco D.O.)

1120160001, In re Charles Burgett, aka Arnold T., Respondent AJ certified to OFO her Order to Show Cause why Respondent should not be sanctioned with exclusion from the present matter and one-year suspension from representational activity in any EEO complaint not presently before the EEOC or its hearing units OFO decision issued April 30, 2018

1120160001, In re Charles Burgett, aka Arnold T., Respondent Sanction Decision Exclusion and suspension of Complainant’s Representative Background Facts/AJ Order Examples of contumacious conduct Both in current case and conduct before other AJs in St. Louis District Office Importance of Show Cause Order detailing contumacious conduct

1120160001, In re Charles Burgett, aka Arnold T., Respondent OFO Analysis OFO upholds AJ Decision to exclude representative from current case OFO reduces AJ’s one year suspension of representative to 6 months

Final questions or discussion?