Sanctions: Improper Conduct During Discovery

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By Deryn Sumner 

So far in this series, we’ve talked about when sanctions against agencies can be appropriate for untimely investigations or incomplete investigations.  Now let’s move, with a sigh of relief for most of you, to a discussion regarding when either party can be sanctioned for failing to comply with discovery.  Many of the key elements are the same as what we discussed in February.  When deciding whether sanctions are appropriate for conduct during discovery, the Commission will look at (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.

Before moving for sanctions is appropriate, in almost every instance the moving party must first obtain a motion to compel the other side to fully respond to the discovery, whether it be written discovery requests or notices of deposition.  If the non-moving party simply has not responded at all, a motion to compel will be very succinct (and should as always include evidence as to what efforts were made to resolve the matter before asking for the administrative judge’s involvement).  If the non-moving party still fails to comply with discovery, even after being compelled to do so, then moving for sanctions may be appropriate.

Your motion for sanctions should go through each of the four elements listed above.  If the party has not responded to discovery at all, then the extent and nature of the non-compliance is significant.  Be prepared to explain how the lack of cooperation has harmed you during discovery.  Some judges take the view that anything important to the case is already included in the Report of Investigation and further discovery is not really necessary.  You should explain why the information you are looking for is important for the case.  For example, I have yet to see a Report of Investigation that has a comprehensive collection of information regarding damages.  If you are representing the agency, you need to have discovery on this prior to the hearing.

As 29 CFR 1614.109(f)(3) states, sanctions can include an adverse inference against the non-moving party, excluding evidence that would be helpful to the non-moving party from the record, awarding attorneys’ fees to a complainant, or dismissing a complainant’s hearing request and remanding the complaint to the agency for issuance of a Final Agency Decision.  This last one is what we see most often in cases where the complainant fails to comply with discovery.  Should that be the case, then the administrative judge may find it appropriate to dismiss the hearing request and order the agency to issue a FAD.  Note, that does not mean the complaint itself is dismissed; the agency must still issue a decision on the merits.  For agencies, sanctions for failing to cooperate in discovery can include excluding certain types of evidence that would support its argument or paying for the attorneys’ fees and costs (including deposition transcripts in some cases) for the complainant’s attorney to conduct the discovery.  The best way to avoid such sanctions is to cooperate with discovery and communicate with the other side about what can be produced and what a reasonable timeframe for production is.  Sumner@FELTG.com

EEOC Files Two Private Sector Lawsuits Alleging Sexual Orientation Discrimination Based On Theory Asserted in Federal Sector Case

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By Deryn Sumner

Although most of us interact with EEOC on the federal sector side of the house, EEOC is also responsible for investigating charges of discrimination filed against covered private sector employers and for filing lawsuits in U.S. District Court on behalf of employees if it finds discrimination but is unable to settle the case after making a finding. This month, EEOC announced that it has filed two lawsuits alleging that private sector employers subjected employees to sex based discrimination under Title VII because of their sexual orientation, a theory the Commission articulated in last year’s Office of Federal Operations’ decision, Baldwin v. Department of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015).

The first lawsuit is against Scott Medical Health Center and alleges that the employer subjected a male employee to harassment because of his sexual orientation, including subjecting the employee to anti-gay epithets and comments about his sexuality and sex life in the workplace. The suit alleges the employee’s supervisor did nothing to respond to the employee’s complaints of harassment and the employee quit after the conduct continued for weeks. The EEOC filed suit in the U.S. District Court for the Western District of Pennsylvania.

The second lawsuit is against IFCO Systems and is filed in the U.S. District Court for the District of Maryland, Baltimore Division. There, the lawsuit alleges that a supervisor made numerous comments to a lesbian employee regarding her sexual orientation, including, “I want to turn you back into a woman” and “you would look good in a dress.” The supervisor is also alleged to have blown a kiss at the employee and circled his tongue at her in a suggestive manner.  The employee was terminated just days after she called an employee hotline to complain about the harassment.

The EEOC’s decision to bring these lawsuits under a theory of sex discrimination continues its position articulated last year in Baldwin. In that decision, after lengthy analysis and detailing of the history of sex discrimination claims, EEOC concluded that as sexual orientation discrimination involves treating employees differently because of their sex, it should be considered sex based discrimination under Title VII. EEOC’s press release announcing these lawsuits references the Baldwin decision.  It also mentions the guide the Commission released in 2015, in conjunction with OPM, OSC, and the MSPB, for federal agencies on how to address sexual orientation and gender identity issues in the federal government, which we discussed in the June 2015 newsletter.

Using the concepts of sex stereotyping to argue sex-based discrimination is not a new theory. The Supreme Court’s decision from 1989 in Price Waterhouse v. Hopkins, 490 U.S. 228, held that the employer violated Title VII when it denied a promotion to Ann Hopkins for her lack of adherence to gender norms, including that she did not walk femininely, talk femininely, dress femininely, wear make-up, style her hair, or wear jewelry. EEOC has relied upon this theory that claims of an individual failing to identify to gender norms (such as marrying someone of the opposite sex, see Veretto v. USPS, EEOC Appeal No. 0120110873 (2011)) necessarily relate back to sex and are covered by Title VII.  We’ll be waiting to see how these district courts respond to the Commission’s theory. Sumner@FELTG.com

Sanctions: Holding Agencies Accountable for Deficient EEO Investigations

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By Deryn Sumner

As promised, we’re going to continue to dive into our discussion of when sanctions can be awarded by EEOC by turning to instances where agencies fail to produce a complete report of investigation (ROI) during the formal complaint stage.  Let’s start at the source. Under the Commission’s regulations at 29 CFR 1614.108(b), an agency must “develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint.” So what does “impartial and appropriate” actually mean?  For that, let’s turn to Management Directive 110, Chapter 6 (remember, MD-110 underwent substantial revisions last year so check your citations before cutting and pasting from past filings).  “An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred.”  MD-110, Ch. 6.  Specifically, “the investigation shall include a thorough review of the circumstances under which the alleged discrimination occurred; the treatment of members of the complainant’s group as compared with the treatment of other similarly situated employees, if any; and any policies and/or practices that may constitute or appear to constitute discrimination, even though they have not been expressly cited by the complainant.”  Id.  For example, if it’s a non-selection case, the investigation needs to include documents and evidence related to the selection process, any interview notes, affidavits from the panel members, and copies of the relevant applications in order to be appropriate.

Okay, now that we have some more specifics of what is included in an appropriate factual record, let’s turn to what complainants can request if the investigation does not meet this standard. The EEOC’s Handbook for Administrative Judges, although it dates back to 2002, is a great resource. (It’s available at http://www.eeoc.gov/federal/ajhandbook.cfm) It provides:

If the Administrative Judge reviews the investigative report and finds that the agency did not sufficiently comply with its obligation under 29 C.F.R. 1614.108(b) to develop an impartial factual record from which a reasonable fact finder could determine whether discrimination occurred, or if no investigation has been conducted, the Administrative Judge retains jurisdiction over the complaint. In order to develop the record, the Administrative Judge may order the agency to complete an investigation within a particular time period; allow the parties to develop the record themselves through discovery; issue orders for the production of documents and witnesses; or consider appropriate sanctions. The parties shall initially bear their own costs with regard to discovery, unless the Administrative Judge requires the agency to bear the costs for the complainant to obtain depositions or any other discovery because the agency has failed to complete its investigation as required by 29 C.F.R. 1614.108(e) or has failed to investigate the allegations adequately pursuant to EEO MD-110, Chapter Six.

Handbook for Administrative Judges, Ch. 1, Part I(D)(2) (July 1, 2002).

Turning back to MD-110, sanctions are also referenced as the appropriate response to a deficient record:

Where it is clear that the agency failed to develop an impartial and appropriate factual record, an Administrative Judge may exercise his/her discretion to issue sanctions.  In such circumstances, the sanctions listed in § § 1614.109(f)(3) are available. See Petersel v. U.S. Postal Service, EEOC Appeal No. 0720060075 (Oct. 30, 2008) (Administrative Judge properly drew an adverse inference against the agency when the investigative report failed to include any comparative data on other employees); Royal v. Dep’t. of Veterans Affairs, EEOC Appeal No. 0720070045 (September 25, 2009) (finding that the agency’s delay in completing the investigation within the 180-day regulatory period is no small noncompliance matter and warrants a sanction). Even when an agency eventually completes the investigation during the hearing stage an Administrative Judge may issue sanctions in appropriate circumstances.

See MD-110, Ch. 6, Part XII (emphasis added).

Now, before you get too worried, here’s some saving grace:

Before an Administrative Judge may sanction an agency for failing to develop an impartial and appropriate factual record, the Administrative Judge must issue an order to the agency or request the documents, records, comparative data, statistics, or affidavits. 29 C.F.R. § 1614.109(f)(3).…The notice to show cause to the agency may, in appropriate circumstances, provide the agency with an opportunity to take such action as the Administrative Judge deems necessary to correct the deficiencies in the record…Only on the failure of the agency to comply with the Administrative Judge’s order or request and the notice to show cause may the Administrative Judge impose a sanction or the sanctions identified in the order or request.

So what should you do as an agency representative when you realize the ROI is deficient? I suggest proactively seeking to supplement the record with the missing information before sanctions are requested. And, as we discussed last month, if the administrative judge is set on sanctioning the agency, argue for a lesser sanction. And don’t think about hiding behind your agency’s use of a contractor to complete investigations. The Commission has held that an agency’s use of a contractor to investigate EEO complaints does not excuse the agency’s responsibility for the timeliness and content of these investigations.  See Adkins v. FDIC, EEOC Appeal No. 0720080052 (January 13, 2012) citing MD-110, Chapter 5; Cox v. Social Security Admin., Appeal No. 0720050055 (December 24, 2009). Sumner@FELTG.com

EEOC Seeks Public Comment on Proposed Regulations Related to Increasing Employment of Individuals with Disabilities in the Federal Government

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By Deryn Sumner

Over the past year or so, EEOC has sought public comment regarding revisions to the regulations at 29 CFR 1614, as well as its guidance regarding workplace retaliation. It now seeks public input regarding a proposed amendment to the regulations concerning the employment of individuals with disabilities in the federal government.  This continues the administrative rulemaking process started in 2014 when the EEOC issued an Advance Notice of Proposed Rulemaking. At that time, EEOC sought general comments on how the regulations could be improved to highlight the federal government’s priority in serving as a model employer of individuals with disabilities. According to this latest posting, EEOC received 89 comments, of which 80 were generally supportive of the Commission’s proposal to amend its regulations.  The Notice of Proposed Rulemaking (NPRM) issued recently seeks to simplify the directives and guidance contained in the Americans with Disabilities Act of 1990 and its implementing regulations, Management Directive 715, and various executive orders.  The NPRM also seeks to modify the goals for federal agencies in hiring individuals with disabilities and would change the MD-715 reporting requirements accordingly.

I think the most interesting aspect of the NPRM is the inclusion of personal services. As the summary explains, “Personal services allowing employees to participate in the workplace may include assistance with eating, drinking, using the restroom, and putting on and taking off clothing. For many individuals with targeted disabilities such as paralysis or cerebral palsy, full participation in the workplace is impossible without such services. The lack of PAS in the workplace and/or the fear of losing personal services provided by means-tested assistance programs are stubborn and persistent barriers to employment for individuals with certain significant disabilities.”

The proposed rulemaking notes that agencies would not be required to provide such personal services as reasonable accommodations. However, these changes would require agencies to provide personal services as part of the agency’s affirmative action plan as long as doing so would not cause an undue hardship. [Editor’s Note: Feels a bit like EEOC is making a distinction without a difference. Does an agency have to employ someone to provide personal services for a disabled employee? No, not as a reasonable accommodation; yes, as part of the agency’s affirmative action plan.] This requirement can be fulfilled by hiring employees to perform personal services along with other duties, or to hire personal assistants who would assist more than one individual with a disability.  The summary notes that agencies could consider having a pool of personal assistants throughout the agency or at a particular location, and notes that many agencies currently use such a pooling system to provide sign language interpreters.

The EEOC’s NPRM comes after OPM issued a report to the President on October 9, 2015, noting, “By the end of Fiscal Year (FY) 2014, total permanent Federal employment for people with disabilities had increased from 234,395 in FY 2013 to 247,608, representing an increase from 12.80 percent to 13.56 percent. New hires with disabilities totaled 20,615, representing an increase from 18.18 percent in FY 2013 to 19.74 percent in FY2014.” The full report is available here: https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reports/disability-report-fy2014.pdf if you are interested in seeing how your agency stacks up. The comment period closes on April 25, 2016 and comments in response to the NPRM can be submitted here: https://www.federalregister.gov/articles/2016/02/24/2016-03530/affirmative-action-for-individuals-with-disabilities-in-the-federal-government. Sumner@FELTG.com

Sanctions: Failure to Complete EEO Investigation within the Regulatory Timeframe

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By Deryn Sumner

As promised, over the next several months we’re going to discuss the different reasons why one party may move for sanctions against the other in the federal sector EEO process. We’re going to begin this month with something that has gotten a fair amount of attention over the past nine years: requests for sanctions, up to and including default judgment, when an agency fails to timely complete an EEO investigation.

Let’s first look at the regulations.  The Commission’s regulations at 29 C.F.R. 1614.108(f) require agencies to complete EEO investigations within 180 days of the filing of (not receipt of) the formal complaint.  Where a complainant subsequently amends a complaint, the investigation must be completed by either 180 days from the last amendment, or 360 days from the filing of the original formal complaint, whichever is earlier. Once that timeframe has expired, a complainant can request a hearing, even if the investigation is not completed. 

A new requirement set forth in Chapter 5 of the recently revised MD-110 states, “If the investigation is not completed within the 180-day time limit, the agency must send a notice to complainant informing him/her that the investigation is not complete, providing an estimated date by which it will be complete and explaining that s/he has a right to request a hearing from a Commission Administrative Judge or to file a civil action in the appropriate U.S. District Court. The notice must be in writing, must describe the hearing process including some explanation of discovery and burdens of proof, and must acknowledge that its issuance does not bar complainant from seeking sanctions.” I can’t say I’ve seen one of these notices yet. 

There are many cases addressing whether sanctions are appropriate for untimely investigations.  Here are some of the key ones for federal sector practitioners to review and familiarize themselves with:

  • Cox v. Social Sec. Admin., EEOC App. No. 0720050055 (Dec. 24, 2009)
  • Royal v. Dep’t of Veterans Aff., EEOC App. No. 0720070045 (Sept. 10, 2007), recons. den., 0520080052 (Sept. 25, 2009)
  • Talahongva-Adams v. Dep’t of the Interior, EEOC App. No. 0120081694 (May 28, 2010)
  • Giza v. Dep’t of Justice, EEOC App. No. 0720100051 (Apr. 1, 2011)
  • Montes-Rodriguez v. Dep’t of Agriculture, EEOC App. No. 0120080282 (Jan. 12, 2012), recons. den. 0520120295 (Dec. 20, 2012)
  • Adkins v. FDIC, EEOC App. No. 0720080052 (Jan. 13, 2012)

So, how should Agency Representatives respond to such motions when, in fact, the Agency failed to timely complete the investigation?  First, engage in an investigation of your own.  Figure out what happened and who was involved in the investigation.  Get affidavits, if appropriate, from the EEO or Civil Rights staff explaining what happened.  Also, if the timeframes of non-compliance are minimal, point that out to the Administrative Judge.  However, do not hang your hat on blaming a contractor for any delays.  As the Commission said in Cox, “The fact that the agency contracts with an outside company to conduct the investigation does not absolve it of its responsibility to ensure that the ROI is adequately developed on which to base a decision.”   

In your response, talk about each of the pertinent factors cited by the Commission in determining what, if any, sanction is appropriate.  These 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.  If the non-compliance was minimal and if there’s any colorable justification for the delay, provide that.  Point out if there were no prejudicial effects or consequences as a result of the delay.     

If the non-compliance is substantial, you may want to consider arguing for a lesser sanction, such as covering the costs of discovery, in lieu of default judgment.  As the Commission stated in Cox, “In general, the Commission has held that sanctions, while corrective, also act to prevent similar misconduct in the future and must be tailored to each situation, applying the least severe sanction necessary to respond to the party’s failure to show good cause for its actions, as well as to equitably remedy the opposing party.” (citations omitted and emphasis added). 

Next month we’ll talk about when sanctions are appropriate for insufficient or inappropriate investigations.  Sumner@FELTG.com

EEOC Seeks Public Comments on Proposed Enforcement Guidance on Retaliation

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By Deryn Sumner

A few weeks ago, the EEOC announced that it is seeking public comment on a draft of proposed Enforcement Guidance concerning retaliation: http://www.eeoc.gov/eeoc/newsroom/release/1-21-16a.cfm.  The press release noted that the EEOC had last issued guidance about retaliation in 1998.  Since then, there have been some substantive developments in the case law.  Notably, in 2006, the Supreme Court issued its decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), which addressed what constitutes an adverse action for purposes of a claim of retaliation.  The decision held that for purposes of retaliation claims, adverse actions do not need to be “ultimate employment decisions.” It also contains one of my favorite sentences from a Supreme Court decision for its sheer simplicity, “Context matters.”  As the decision goes on to explain, a schedule change taken in retaliation may not be a big deal to every employee, but it can be a big deal to someone with school-age children.  Therefore, the context of each action alleged to be retaliatory matters.    

Now, ten years after this Supreme Court decision, the EEOC is looking to update its Enforcement Guidance.  Another interesting note from the press release is the massive increase in retaliation claims:

The percentage of retaliation charges has roughly doubled since 1998, making retaliation the most frequently alleged type of violation raised with EEOC. Nearly 43 percent of all private sector charges filed in fiscal year 2014 included retaliation claims. In the federal sector, retaliation has been the most frequently alleged basis since 2008, and retaliation violations comprised 53 percent of all violations found in the federal sector in fiscal year 2015.

The 1998 guidance about retaliation claims was part of the EEOC Compliance Manual and was primarily geared towards investigators reviewing claims of private sector retaliation, though the same legal elements apply to both private sector and federal claims.  The proposed Enforcement Guidance, for which the EEOC now seeks comment, takes the format of other EEOC publications, including the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (available at http://www.eeoc.gov/policy/docs/accommodation.html), a document I refer clients and others to almost weekly. 

This proposed Enforcement Guidance on retaliation is thorough, coming in at 76 pages with 222 footnotes, and is well-organized.  Just as in the 1998 release, it starts out by laying out the elements of a retaliation claim, focusing on all the forms protected activity can take, and the broad view of coverage of adverse actions (as we discussed in last month’s newsletter article, https://feltg-stage-ada.stage3.estlandhosting.com/claims-of-retaliation-have-a-broader-view-of-coverage-than-discrimination-claims/).  It’s important to remember that employees are protected from retaliation for initiating an EEO complaint even if the claims being raised in the underlying claims do not have any merit. The Proposed Guidance also details some of the other forms of protected activity beyond just participating in and opposing protected activity, including “complaining about alleged discrimination against oneself or others, or threatening to complain; providing information in an employer’s internal investigation of an EEO matter; refusing to obey an order reasonably believed to be discriminatory; advising an employer on EEO compliance; resisting sexual advances or intervening to protect others; passive resistance (allowing others to express opposition); and requesting reasonable accommodation for disability or religion.”  Something I also find very useful in the proposed Enforcement Guidance is the inclusion of specific examples, which are sprinkled throughout the document.    

The proposed Enforcement Guidance also dedicates a section to the prohibition of employer interference with an employee’s exercise of ADA rights, includes a section on remedies available when an employee prevails on retaliation claims, as well as a section on best practices employers can adopt to reduce incidents of workplace retaliation.   

Public comments on the proposed Enforcement Guidance are due on February 24, 2016 and you can submit input through www.regulations.gov (Docket ID: EEOC-2016-0001). Sumner@FELTG.com

OFO Case Law Snapshot: Three Procedural Dismissals Addressed in One Day

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By Deryn Sumner

As 2016 continues to truck along, let’s check in on the latest (or the most recent Westlaw has released) from the EEOC’s Office of Federal Operations.  On one day in particular, January 8, 2016, the EEOC addressed three dismissals of formal complaints and remanded two out of the three of them for processing.  Given the length of time cases can take to be remanded for further processing, improper dismissals can be dangerous for agencies.  Investigations taking place after a several-year delay can reveal that documents were destroyed and recollections are gone, which can impact an agency’s ability to sufficiently articulate legitimate, non-discriminatory responses to allegations.  So protect your agency by getting it right the first time.   

First, in Clemente M. v. Department of Homeland Security, Appeal No. 0120152854 (January 8, 2016), the agency dismissed a formal complaint for being filed one day beyond the fifteen-day time limit pursuant to 29 C.F.R. 1614.107(a)(2).  The complainant appealed and admitted that he did file his complaint one day late, but requested that the delay be excused.  The complainant proffered that “due to a transmission error, he had lost the initial draft complaint form that had been sent to him and that he was unable to receive and sign a new complaint form and transmit it by email to the Agency until the day after the formal complaint was due.” The Commission found there was adequate justification and no prejudice to the agency because of this slight delay, and remanded the complaint for investigation.

Next, in Ashlee P. v. Department of Defense, Appeal No. 0120152362 (January 8, 2016), the Commission addressed the agency’s dismissal of a complaint filed by a guidance counselor for an overseas elementary school.  The complainant filed a formal complaint alleging discrimination based on race, sex, and reprisal when she received a letter of caution and was subjected to harassment, including five articulated incidents.  The agency dismissed the formal complaint alleging that the complainant did not respond to additional requests for information and further alleged that the complainant “failed to make ‘good faith’ effort to cooperate in the pre-complaint counseling process by intentionally withholding requested information in order to reach appellate review before the Commission more quickly.”  Sound like an accusation from someone unaware of the glacial pace that the Office of Federal Operations operates at.  Despite the agency’s efforts, the Commission found that although the agency asserted that the complainant did not present her claims to the EEO counselor, the EEO counselor’s report reflected that she provided sufficient information to identify the events and actions on which her claims were based, as well as the identity of the responsible management officials, and the timeframes at issue.  This was sufficient for the agency to accept the claims for investigation and conduct an investigation.  The Commission remanded the complaint for such an investigation.      

And finally in Myrna S. v. Social Security Administration, Appeal No. 0120142595 (January 8, 2016), the Commission addressed the complainant’s argument that the agency’s dismissal of her formal complaint for untimely EEO contact should be reversed because she had been hospitalized during the 45-day timeframe.  The Commission disagreed, and took a careful look at the timeframe at issue.  The complainant filed a formal complaint on May 13, 2014 alleging her first-line supervisor subjected her to harassment when they engaged in an affair from August to December 2011.  The agency dismissed the formal complaint as the complainant did not contact an EEO counselor until years later on March 16, 2014.  The complainant argued on appeal that she did not contact an EEO counselor within the 45-day timeframe because she suffered from anxiety, depression, and was hospitalized.  She also claimed she forgot about the EEO training she received in 2010, which would have included information about the 45-day timeframe.  The agency opposed the appeal by arguing that EEO posters including this timeframe were prominently displayed in the complainant’s office. The Commission reviewed the time period in question and noted that the documentation the complainant submitted about her hospitalizations revealed she was in the hospital for approximately 18 days, between January 2012 and March 2014.  The Commission found that the complainant did not demonstrate she was so incapacitated during the relevant, several-year timeframe so as to excuse her untimely EEO contact.  The Commission affirmed the final decision dismissing the formal complaint.   Sumner@FELTG.com

Claims of Retaliation Have a Broader View of Coverage than Discrimination Claims

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By Deryn Sumner

Although I do represent a few federal agencies, I consider myself first and foremost an advocate for employees. But even I, upon reviewing a formal complaint from an employee, will sometimes think to myself, “How on earth can someone possibly feel aggrieved by this minor workplace slight?” And of course, under the Diaz standard set forth in Diaz v. Dep’t of Air Force, EEOC Appeal No. 05931049 (April 21, 1994), only those claims that show a harm or loss that effect a term, condition, or privilege of employment are considered adverse actions. However, this just applies to claims of discrimination. Remember that the Commission views claims of retaliation under a “broad view of coverage” and claims that might not pass muster as claims of discrimination could be found to state claims of retaliation. The Commission often cites to Section 8 of the EEOC Compliance Manual, first published in 1998 and available at http://www.eeoc.gov/policy/docs/retal.html, in support of this position. Although the terminology used in the Compliance Manual relates to the Commission’s role in investigating private sector charges of discrimination and litigating claims in federal court, the same standard – that adverse actions do not need to be “ultimate employment actions” or materially affect the terms or conditions of employment to constitute retaliation – applies to the federal sector.

There are key illustrations of this in the Commission’s regulations and case law. For example, under 29 C.F.R. 1614.107(a)(5), proposals to take a personnel action do not state a claim of discrimination, but they can state a claim of retaliation.

The Commission has held that being subject to an internal investigation does not state a claim of discrimination, as it found in Heard v. Dep’t of Justice, EEOC Appeal No. 0120092680 (August 27, 2009). However, the same incident can state a claim of retaliation, as the Commission found recently in Bryant F. v. Dep’t of Interior, EEOC Appeal No. 0120121828 (December 11, 2015). Noting prior cases where similar claims did not constitute adverse actions for purposes of establishing a claim of discrimination, including Heard, the Commission noted that retaliation claims “are not restricted to those which affect a term or condition of employment” but rather anything “that is reasonably likely to deter protected activity.”

In Tamara G. v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120112387 (December 3, 2015), the Commission held that receiving a rating of “highly successful” could reasonably deter someone from engaging in protected activity. The Commission found that even if the rating is positive, the employee’s receipt of a lower evaluation could “create a chilling effect on an employee engaging in protected activity in the future.”

So remember, when looking at whether allegations state a claim, look at whether the allegations are being raised under a theory of retaliation and be sure to apply the correct “broader” standard. Sumner@FELTG.com

Tips for Drafting EEO Settlement Agreements

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By Deryn Sumner

So after months (okay, or maybe hours) of negotiation, you’ve agreed on terms and reached a settlement in principle to resolve an EEO complaint? Great! Now comes the next hurdle: reducing the terms to writing and getting everyone to sign off on the darn thing so the Administrative Judge will dismiss the case and you can get it off of your desk. Here are some tips to make this next stage as pain-free as possible.

First, if you represent an agency, you likely already have boilerplate language it uses in every settlement agreement. I like to have a draft of that boilerplate agreement already prepared with the case caption on top and as many blanks filled in besides the actual terms before going into a mediation, settlement conference, or even the hearing. Remember, the vast majority of cases settle instead of being decided on the merits so there’s a good chance such preparation will come in handy at some point in the litigation. While you work on drafting the language for the specific terms agreed upon, give a copy of an agreement with the rest of the language to the complainant and his or her representative to review. It saves everyone time and helps you focus on how best to draft the language of the terms, while someone else is explaining what “OWBPA” language is the complainant. (Speaking of the OWBPA, it’s a good practice to put it in every agreement where the complainant is 40 years old or older, regardless of whether age has been raised as a basis). [Editor’s Note: That’s the “Older Workers Benefit Protection Act” for you newbie’s out there. That law is based on the assumption that if you are 40 years old or older, you don’t think too fast. ]

Include a reference to the requirements at 29 C.F.R. 1614.504 in the agreement itself so the complainant knows what to do if there’s a problem with compliance. To make everyone’s lives a little easier,

To avoid problems with compliance, think through each of the things both parties are agreeing to do under the settlement agreement with “who, what, when, and how” as your guide. To whom does the Complainant need to submit documentation of attorneys’ fees? What exactly is each party agreeing to do? (Neutral references can mean many different things, and don’t forget to require the Complainant to actually withdraw his or her complaint as a term). When is the payment going to be made? How should the Agency distribute any payments between the Complainant and his or her attorney? If someone not involved in the negotiations were to pick up this agreement and make sure everything was completed, how would they know that was the case? Remember that everything the parties intend to happen should be contained within the four corners of the agreement and should not require looking at any other documents to determine the intent of the parties. If there are any outside documents included as part of the terms, such as a written letter of reference or an SF-50, reference it and include it as an attachment to the agreement.

And finally, I’m sure none of our esteemed FELTG newsletter recipients would make such a mistake, but make sure the agreement actually has consideration for the Complainant in exchange for withdrawing his or her claims. No, agreeing to treat employees with “respect” or giving them an accommodation they are otherwise entitled to is not valid consideration. It’s something every employee is otherwise entitled to receive in the workplace. Sumner@FELTG.com

Sanctions: When Can They be Requested and What’s the Standard for Granting Them

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By Deryn Sumner

Ahh, sanctions. One of my favorite topics, and something I thought could be useful to explore over the next several months of newsletter articles. (As a side note, I received a suggestion that this series be titled, “Everything But the Kitchen Sanc-tion.” And yes, I can hear you groaning from here). Complainants can request sanctions for the agency’s actions during the investigative stage, such as failing to conduct an investigation, failing to timely complete an investigation during the regulatory timeframe, failing to conduct an appropriate investigation, or failing to require employees to cooperate during the investigation. Complainants can also request sanctions if the agency failed to properly preserve relevant documents, such as notes taken by a selection panel during interviews, or if the agency engages in other misconduct during discovery, such as destroying documents or improperly coaching witnesses. And don’t worry agencies, you can move for sanctions too, including if the complainant fails to cooperate in litigation or respond to the administrative judge’s orders.

By regulation at 29 CFR 1614.109(f)(3), sanctions can range from drawing an adverse inference against the non-moving party, excluding evidence that would be helpful to the non-moving party from the record, making determinations of fact in favor if the moving party, issuing a decision fully or partially in favor of the moving party, or the fun catch-all of “other actions as appropriate.” These sanctions can include awarding attorneys’ fees to a complainant, or dismissing a complainant’s hearing request and remanding the complaint to the agency for issuance of a Final Agency Decision. And no agencies, no matter how many times you fruitlessly argue that the Commission cannot order a federal agency to pay attorney’s fees as monetary sanctions because of the Anti-Deficiency Act, the Commission has roundly rejected this argument. As the Commission stated in Complainant v. Dep’t of Army, EEOC No. 0720130011 (August 7, 2015):

The Commission previously has addressed, and rejected, the Agency’s arguments regarding sovereign immunity and the Anti–Deficiency Act. In Mirabal v. Department of the Army, EEOC Appeal No. 0720120007 (November 9, 2012), request to reconsider denied, EEOC Request No. 0520130236 (March 27, 2014), we found that the AJ properly ordered the Agency to pay attorney’s fees incurred because of delays in the hearing on the complainant’s claim of national-origin discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Citing Matheny v. DoJ, EEOC No. 05A30373 (2005) and other Commission precedent, we concluded that the Commission has authority to issue monetary sanctions and that the AJ’s actions were consistent with Commission regulations, EEO MD-110, and Commission precedent. See also Complainant v. Dep’t of the Army, EEOC Appeal No. 0720130033 (Apr. 24, 2014)(rejecting Agency’s arguments, in a Title VII case, that it did not have authority to pay attorney’s fees sanction because of sovereign immunity and a potential violation of the Anti–Deficiency Act), req. for reconsideration denied, EEOC Request No. 0520140359 (Mar. 20, 2015).

Something I’m going to stress throughout this series is the idea that if the party you represent has engaged in sanctionable conduct, you may want to recommend to your client that you argue that although sanctions may be appropriate, a lesser sanction than the one proposed would serve to address the misconduct. Sanctions should, after all, be narrowly tailored to appropriately address the conduct at hand. See Abulsaad v. Dep’t of the Navy, EEOC App. No. 0120102379 (March 26, 2012).

Next month, we’ll discuss how to respond to motions for sanctions where the agency has not timely completed the Report of Investigation (spoiler alert: blaming it on the contractor your agency uses to conduct EEO investigations isn’t going to fly). Sumner@FELTG.com