Tips from the Other Side, Part 2
By Meghan Droste, February 14, 2018
Confession time—I’m a rule lover. Now, I don’t just mean that I follow the rules; I mean that I really like when there are rules, I enjoy reading the rules, and I derive some not insignificant amount of joy from following the rules. I think this explains my love of baking (the recipe is just a list of rules that need to be followed) and etiquette books (I have a collection). Every Sunday morning, I start my day by reading The Ethicist column in The New York Times Magazine while eating a bagel. Judge if you want, but we all have our own quirks.
One of the reasons I like having rules is that they set out parameters and expectations. When I’m baking—whether it’s a new recipe or one that I have made dozens of times—I know what ingredients I need and in what order to mix them, and I know what the outcome will be. Similarly, I know what I need to do as a litigator because there are often specific rules that set out the order of things to do and the deadlines for doing them. I follow the rules because I like to, but also because I know that if I don’t follow them, there can be significant consequences.
I share all of this with you because it seems some agencies think that the rules can be bent just because it’s hard to follow them. One of the rules that is so basic and yet so often ignored is the deadline to complete an investigation of a formal complaint. As you know, agencies have 180 days from the date a complainant files a formal complaint to complete an investigation and issue a Report of Investigation. This is in fact a deadline, not a suggestion. When I find that an agency has missed the 180-day deadline, I always file a motion for sanctions.
When reviewing a motion for sanctions, the Commission is unlikely to be moved by any excuses the agency might offer. Understaffed? You still have to follow the rules. See Lomax v. Dep’t of Veterans Affairs, EEOC App. No. 0720070039 (October 2, 2007) (“The agency’s internal situation cannot be used as a defense to its failure to comply with the Commission’s regulations.”). In a budget crunch? You still have to follow the rules. See Royal v. Dep’t of Veterans Affairs, EEOC Req. No. 0520080052 (September 25, 2009) (“[W]hen considering whether an agency has the fiscal resources to comply with the requirements of the EEO process, it is appropriate to look to the agency as a whole . . . the agency cannot expect to evade the consequences of its funding decisions.”). Using a contractor? You still have to follow the rules. See Adkins v. FDIC, EEOC App. No. 0720080052 (January 13, 2012) (“Even when agencies contract with other organizations to conduct investigations, the agencies remain responsible for the content and timeliness of the investigations.”).
The Commission has sanctioned agencies many, many times for the failure to meet this deadline. The severity of the sanctions can vary, but default judgment is common. Why risk the ultimate sanction—a finding that the agency discriminated against a complainant—when the rules are so clear? Make sure you hold the people in your agency accountable for timely completing investigations of EEO complaints. Trust me, it’s fun to follow the rules.
If you have specific questions or topics you would like to see addressed in a future Tips from the Other Side column, email them to me. Droste@FELTG.com