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

This Isn’t the Way Civil Service Justice Should Work

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By William Wiley

The drums continue to beat to abolish the civil servant protections we have all come to love and respect. Certainly here at FELTG, we have pushed back hard, arguing that the oversight programs and redress procedures really aren’t that bad, that employees can indeed be held accountable if agencies just understand how easy this can all be done, and that all things considered, ours is a working civil service, redress procedures and all.

And then I run into a case like this one. If Congress really intended for things to be like this, then maybe the time has indeed come to dump the civil service protections completely, because a government cannot work efficiently when stuck with these processes:

  1. The agency involved here has a two-step unacceptable performance procedure. Whereas most agencies require failure of a one-step Performance Improvement Plan prior to removal, this agency (unfortunately) requires that an employee initially fail a Performance Assistance Plan (PAP) and then subsequently fail a Performance Enhancement Plan (PEP) before being removed.
  2. The employee’s supervisor felt that the employee was a poor performer. He kept hand-written notes documenting instances of poor performance. Once he had collected enough documented poor performance, he transcribed the notes into typed form, initiated a PAP, then a PEP, and then fired the employee once she failed everything.
  3. The fired employee took the case to arbitration, claiming race/retaliation discrimination, among other things. The arbitrator found no discrimination, failure of the PEP, and upheld the removal.
  4. MSPB upheld the arbitrator’s award: no discrimination, removal affirmed.
  5. The employee took the issue of the failed PAP (and a couple of other alleged management bad-acts) to EEOC. After a TEN DAY hearing, using two different administrative judges, EEOC found discrimination in the issuance of the PAP. In large part, the discriminatory finding was based on the fact that the supervisor did not keep his hand-written notes once he transcribed them.
    1. EEOC has jurisdiction of the PAP as a claim of retaliation. However, it does not have jurisdiction over the PEP as removal for failing a PEP is a matter within MSPB’s jurisdiction. Therefore, the Commission could not order the agency to reinstate the PEP-failed employee.
    2. Of course, the employee would not have been put on the PEP but-for the agency’s discriminatory placement of the employee on the preliminary PAP. But we can’t get there from here in a legal sense.
    3. EEOC awarded the employee about $15,000 in pain-and-suffering-like compensatory damages, reducing it from a greater amount requested because the employee was “impeached.”
    4. EEOC then awarded the employee’s attorney about $385,000 in fees and costs.

Be sure to get your head around this: the employee was justly fired for poor performance, but got $15,000 in damages; she was discriminated against because her supervisor threw away some notes; and the agency has to pay the employee’s attorney 25 times what the employee recovered as a remedy. If this seems to you like a good way to run a civil service, please-please don’t write to me to explain it. If there is rationality in this mess, it is above my pay grade to understand. Kerrie F. v. SSA, EEOC No. 0720140026 (October 29, 2015).

Being desperate to come up with ANYTHING from this almost-half-million dollar waste of government money, I am left with two points to highlight for you wonderful readers:

  • Be careful of EEOC’s regulation at 29 CFR 1602.14 if you are agency counsel. A good complainant’s lawyer is going to beat you over your head and demand big-time evidence-suppressing sanctions if your poor unsuspecting supervisor fails to keep ANY written note relevant in ANY way to a POTENTIAL personnel action. This regulation goes far beyond the classic prohibition regarding the spoliation of evidence: the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding. Rather 1602.14 says in abbreviated, significant language: Any personnel record made relevant to a termination, shall be preserved for a period of one year from the date of the making of the record. In this case, the “personnel record” that was not preserved was the supervisor’s personal note, not anything in an agency’s official systems of records. And those notes were related to the initiation of the PAP, not directly to the eventual termination for failure of the subsequent PEP. How many supervisors know that if they throw away any scrap of paper relative to employee accountability, EEOC will assume discrimination? I keep trying not to go there, but that’s where I keep coming out.
  • Think, for a moment, how ridiculous this regulation is. Today, a supervisor makes a note (sends an email … whatever) regarding an employee being tardy. He has no idea whether that “personnel record” will be “made relevant to a termination” that might occur in the upcoming year. He either has to store that record for a year on the chance that it might be used relative to a removal or run the risk that he will be sanctioned for not keeping the note. And notice what the sanction was in this case: refusal by EEOC to allow the agency to introduce any collateral evidence (transcript or testimonial) as to what those notes said or what the facts were on which those notes were based. Absolutely ridiculous.

Civil service litigation, when taken to the nth degree as it was here, can easily be an ugly, nonsensical, expensive mess. Set high the price you are willing to pay to avoid it.

It’s going to take some very big and very creative ideas to fix this chaos. Sadly, none of the proposals being batted around in the press and on Capitol Hill would make a dent in a case like this. For a better civil service, we need to go farther beyond the box, to look for a really-huge solution; really far and really-really HUGE. Wiley@FELTG.com.

[Editor’s Note: Here at FELTG, we don’t teach just the law; we also teach things that can help a person get through the world of the civil service when the law is not involved. One of our featured instructors in that effort is Michael Vandergriff, a specialist in Surfing the Swamp© of the inter-personal aspects of conflict resolution. What follows is an article written by Michael that addresses some of life’s missed opportunities.]

Charlie Manson? Oh, He’s Average.

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By Michael Vandergriff

Surfing the swampI trained Charlie Manson’s psychiatrist.

It was the California Medical Facility (CMF) in Vacaville, CA, the summer of 1980, and the topic was conflict management. Part of an external degree program in Criminal Justice, offered by California State University, I was the junior member of a three-instructor team, but the only staff member present for all sessions. Attendees were Correctional Officers (fighting the “guard” label), local California Highway Patrol (quite serious), and CMF psychiatric staff (crazy, but in a good way).

Before and after class, I’d approach Chris, Charlie’s shrink, and pepper him with questions about Manson. Chris told stories, and I was riveted. I learned that Charlie’s job was to sweep out the institution’s chapel! Picturing Manson in church on the end of a broom gave me mental images of his spontaneous combustion.

For political junkies, Charlie had a role to play in the national elections of 1980. The class was aware that Manson had a ring to place on one of three pegs and that, in his mind, his selection would determine the next President of the United States: Carter, Reagan, or the independent, Anderson. Student interest rose to a fever pitch, but their disappointment was palpable when Chris reported that Charlie had postponed his decision until after the end of the class. My guess was that several students wanted to know who to vote for.

My curiosity was blunted when Chris put everything in perspective. He said, “I appreciate your interest, young man, but the CMF is the repository of the most unstable inmates in the California State Prison System and, in this environment, Charlie is average.” Chris proceeded to share stories to convince me of his assertion.

My summer in Vacaville was a wonderful start for my nearly four-decade career spent training others. And the food at the now-closed Nut Tree, a famous landmark, was the perfect end for each teaching day.

I have only two missed opportunities since 1979. First, was the loss of my role as part of a teaching team for a class of inmates at Folsom Prison, to be held the year after CMF. The professor, Larry, about 5’7” and 150 pounds, had recruited two of us to assist. I was an ex-collegiate shot putter and my counterpart, Kerry, weighed 300 pounds and was a Kendo expert (Japanese stick fighting). It was clear we were involved for more than our instructional skills. I learned the nuances of prison subcultures, the harsh details of the California no-hostage policy, and the health benefits of a clip-on tie. All classes were cancelled, though, when an inmate stabbed a staffer with a very unhygienic, concealed blade.

The second lost opportunity was with an organization being “stood up” in Colorado Springs. I had delivered a conflict session at Ft. Carson, and my performance had caught the attention of someone in this fledgling organization. Our schedules did not match up and, by the time there was flexibility, their workload had exploded. The potential customer was the US Anti-Doping Agency (USADA); the organization that eventually brought down Lance Armstrong, the cycling champion.

USADA would have been a very special audience to me. In the early 1970’s, I was, pound-for-pound, one of the best non-steroidal shot putters around. This isn’t saying much, as I believe I was one of only a few non-steroidal shot putters around. It would have provided closure to speak to USADA, as a presenter who walked away from the dreams of his youth because he refused to “juice.” The residual imprint for me has been to watch sporting events wondering which combatant has the best chemist.

I’ve most enjoyed working with Native American groups (Lummi Tribe, Bellingham WA; Chippewa in Belcourt ND; Navajo in Shiprock NM). It has also been very rewarding to work with NASA (Kennedy Space Center FL). In hindsight, both NASA engineers and Native Americans had calm temperaments and function somewhat as families.

Missing out on teaching felons and anti-doping wizards is a regret, but not spending time with the fun-loving psychiatrists would have been a huge loss. They provided an early lesson in life: humor can be the best protection around tough characters and dismal situations. Training on the topic of conflict for decades, I remain upbeat. I guess it could be said that Manson’s psychiatrists helped me more than I helped them.

Michael Vandergriff portrait[To contact Michael, email info@feltg.com ]