Tips From the Other Side, Part 9

By Meghan Droste September 19, 2018

No one — at least no one I know — likes to get in trouble. It’s never fun to be caught in the act or to be called out for failing to meet expectations. When it looks like we have been caught, we tend to deflect: I didn’t do it; and if I did, it wasn’t really that bad; and no matter how bad it was, you can’t punish me for it.

From what I remember, this rarely worked when I was a child, and it certainly does not work when arguing a case. Unfortunately, it seems that several agencies missed this memo when it comes to arguing that the EEOC does not have the authority to issue monetary sanctions.

In case after case, the Commission has shot down variations of the same argument when it comes to monetary sanctions. Several agencies have argued that the EEOC does not have the authority to order a federal agency to pay money to a complainant as a form of sanction in the administrative process.

These arguments generally center on the idea of sovereign immunity — the principle that a party may not sue the government without its consent. Agencies assert that the federal government has not waived sovereign immunity in a way that would permit it to use public money to pay a sanction in connection with an order from the EEOC.

The argument that sovereign immunity prevents the Commission — both administrative judges and the Office of Federal Operations — from ordering an agency to pay monetary sanctions goes back to at least 2005 with the case of Matheny v. Department of Justice, EEOC Req. No. 05A30373 (Apr. 21, 2005). In at least 11 other cases, agencies have asserted the same argument, including as recently as in the Taylor Z. v. Department of the Army decision from July EEOC Pet. No. 0420160037 (July 26, 2018). In every case, the Commission has rejected this argument outright and concluded that it has the authority to issue these sanctions.

This is a losing argument. Trust me. I cannot envision any circumstance in which the Commission is going to suddenly reverse its position on this issue.  Please save yourself, and everyone else, the trouble and do not try this argument.  You’re not going to win and you will only succeed in wasting the time and resources of your agency, the complainant and the Commission.

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 Droste@FELTG.com.