0720030069
05-25-2007
Cindy B. Waller, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Cindy B. Waller v. Department of Transportation
0720030069
5-25-07
.
Cindy B. Waller,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0720030069<1>
Agency No. 4-00-4081
Hearing No. 210-A1-6293X
DECISION
INTRODUCTION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's final order in the above-entitled matter,
and the agency's appeal regarding monetary sanctions. Complainant is
challenging both the EEOC Administrative Judge's (AJ) finding of no
discrimination in this matter, as well as the agency's unwillingness
to comply with the AJ's order to pay complainant attorney's fees and
costs incurred in preparation of her Motion for Sanctions. The agency
is challenging the AJ's decision awarding complainant attorneys fees
and costs incurred in preparation of said Motion.
ISSUES
Whether the agency engaged in a continuing violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et
seq., and/or the Equal Pay Act of 1963 (the Equal Pay Act or EPA), as
amended, 29 U.S.C. � 206(d) et seq. in that, from January 1997 through,
at least, March 2000, she has been denied equal pay on the bases of race
(African-American), sex (female), and in reprisal (resolved in 1996)
for prior EEO activity.
Whether the agency violated Title VII on the basis of race, sex, and
in reprisal when, in March 2000, complainant was denied a quality step
increase and was not promoted to a FG-12 position.
Whether the AJ erred in issuing an Order Granting Complainant's Motion
For Sanctions for agency's failure to conduct a �diligent quest for
responsive information anticipated and required by the Federal Rules of
Civil Procedure and pertinent case law.�
BACKGROUND
The record reflects that, in December 1996, while complainant was a
Personnel Assistant, FG-203-07, complainant's coworker (CW-1), a FG-11,
was promoted to a position in the Regional Office.<2> As a result,
the agency reassigned CW-1's duties to complainant and another coworker
(CW-2) (Caucasian, male, prior EEO activity). From January 1997 through
March 2000, Complainant, CW-2,<3> and a third coworker (CW-3) (Caucasian,
male, prior EEO activity) were assigned duties and delegated program
areas of specialization from the same official position description.
All three employees worked for the same managers. While complainant and
CW-2 derived their duties from the same position description until March
26, 2000, the agency assigned complainant primary responsibility for the
following areas: (1) Position Classification and Position Management; (2)
Pay Administration; (3) Staffing; (4) Employee Services; (5) Performance
Management; and (6) Incentive Awards. In contrast, CW-3 performed Labor
Relations duties, including representing management and the agency at
union meetings.
On June 6, 1999, the agency reassigned CW-2 to a newly developed
non-supervisory position of Management and Program Analyst, FG-343-12,
a position with new duties. Similarly, CW-3 was given a new position
description and promoted to a FG-12 in mid-February 2000. The record
reflects that CW-3 had been a FG-11 for seven years prior to his
promotion, and during that time, he concentrated on Labor Relations.
The agency permanently promoted complainant to the position of Personnel
Management Specialist (PMS), FG-201-11, on January 17, 1999. Complainant
maintained that, approximately one month after her promotion and in
October 1999, she asked her supervisor (Supervisor-1) whether she could
receive a Quality Step Increase (QSI).<4> Supervisor-1 stated that he
did not believe that complainant's performance warranted a QSI.
In January 2000, another supervisor (Supervisor-2) began managing
the PMSs. Complainant requested a QSI from Supervisor-2. Supervisor-2
stated that he believed that the decision to give a QSI was a manager's
decision; he did not think complainant's work warranted a QSI; and he
told the Air Traffic Manager (ATM), complainant's second-line supervisor,
of complainant's request. In March 2000, complainant asked the ATM
for a QSI. Supervisor-2, however, reasserted that he did not believe
complainant's performance warranted a QSI, or that her work was at a
grade 12 level. Complainant requested a promotion to the FG-12 position
approximately one year after her promotion to the FG-11 position.
The record reflects that there was not a PMS, FG-12, position available
at the time of complainant's request.
On August 8, 2000, complainant filed a formal complaint of discrimination.
Following the agency's completion of its investigation, complainant
requested a hearing before an EEOC AJ.
Administrative Judge's Decision
In May 2002, the AJ held a two day hearing, during which complainant
and five witnesses testified. The depositions of three witnesses were
admitted in lieu of testimony. In a September 24, 2002 decision, the
AJ found no discrimination.
With respect to complainant's Title VII claim, the AJ determined
that complainant failed to establish a prima facie case of reprisal
because she failed to show a nexus between her 1996 EEO activity,<5>
and the agency's alleged failure to provide her equal pay or �promote
her� beginning in 1997. The AJ further found that complainant failed
to establish a prima facie case of sex and race discrimination because
the two individuals named by complainant as comparators, CW-2 and CW-3,
were not similarly situated to complainant. Specifically, CW-2 was
a saved-grade, saved-pay former supervisory PMS, FG-12; and CW-3 had
dominated the Labor Relations practices and duties in excess of five
years, and was awarded a promotion to an FG-12 due to accretion of
duties unique to the scope of his work, his personal abilities, and
his experience. With respect to a prima facie case under the Equal Pay
Act, the AJ determined that complainant failed to show that the actual
content of the job (not title, classification or position description),
which she performed, involved similar tasks; required similar skill,
effort and responsibility; and was similarly complex or difficult,
as compared to the Labor Relations duties, which were CW-3's primary
responsibilities. The AJ further determined that, even when complainant
undertook some duties in the Labor Relations area, she did not perform
them at the same skill level or at the same level of responsibility.
Similarly, the AJ found that complainant failed to show that she operated
with the same degree of independence as her comparators. Instead, the
AJ determined that complainant required a substantially greater degree of
supervision, and that no evidence existed that either of the comparators
required even de minimus supervision in the performance of their duties.
The AJ noted the testimony of the agency that, between January 1997 and
January 1999, the scope and complexity of complainant's duties were
different, requiring less critical and independent analysis, and she
had not met the time-in-grade requirement as a FG-9 in January 1997.
Based upon these factors, the AJ concluded that complainant failed to
carry her burden to establish that the agency discriminated against her
when, from January 1997 through March 2000, she was not provided equal
pay to comparators.
With respect to complainant's claim that she was denied a QSI and a
promotion to FG-12, the AJ found that complainant failed to establish
a prima facie case of discrimination, and the agency articulated a
legitimate nondiscriminatory reason for its actions. Specifically,
as to the QSI, none of complainant's coworkers received a QSI for the
time in question, as management determined that none were deserving; and,
as to the promotion, a FG-12 position was not shown to be available, and
complainant did not perform duties with the required scope and complexity
to justify a promotion to the grade 12 level. The AJ concluded that
complainant failed to prove her allegations by a preponderance of the
evidence. On September 27, 2002, the agency fully implemented the AJ's
finding of no discrimination.
Sanctions
The record indicates that the AJ, in her November 1, 2001 Acknowledgment
and Order, informed the agency that it could be sanctioned for not
complying with her orders. Subsequently, the AJ, in her Pre-Hearing
Ruling, issued April 25, 2002, directed the agency to provide certified
responses to complainant's interrogatories. On May 9, 2002, complainant
filed a Motion For Sanctions for agency's failure to provide responses
to complainant's interrogatories nos. 7, 12, 13, and 14.<6> In the
Agency's Response to Complainant's Motion for Sanctions, dated May 17,
2002, the agency maintained that information for interrogatory no. 7 was
not available, as the information requested was from 1996; a good faith
effort was made to interview the relevant witnesses and obtain relevant
documentation, but no information was forthcoming from the responsible
parties; interrogatory no. 12 requested information that was in the Report
of Investigation at Tab G-1, dated 4/1/01, and the request for information
back to 1995 is overly broad; information regarding a separate division
of Human Resources was irrelevant; and some information requested is
not available from the 1997 time period.
On September 24, 2002, the AJ issued an Order Granting Complainant's
Motion For Sanctions for agency's failure to provide responses to
complainant's interrogatories nos. 7, 12, 13, and 14. Specifically,
the AJ noted that the agency failed to show that it conducted a �diligent
quest for responsive information anticipated and required by the Federal
Rules of Civil Procedure and pertinent case law.� Moreover, she found
that �the agency did not file objections to the discovery and declined
to answer other interrogatories (12, 13, and 14); refused to identify
individuals in complainant's work unit; refused to identify anyone
who is responsible for Pay and Leave administration, even respecting
complainant's facility; and claimed it did not know what percentage of
time complainant performed Pay and Leave Administration duties.� As a
sanction, the AJ deemed uncontested complainant's proposed finding of
fact regarding duties performed by CW-1.<7>
The AJ further ordered the agency to pay reasonable attorneys fees and
costs incurred in preparation of Complainant's Motion for Sanctions, dated
May 9, 2002. On December 23, 2002, the AJ issued an Order Determining
Correct Amount Of Fees And Directing Agency To Pay Such Fee To Complainant
in the amount of $612.50, and provided the agency with 60 days from the
agency's receipt of order to comply. The agency appealed said Order on
January 27, 2003.<8>
Contentions on Appeal
With respect to the merits of her case, complainant asserts, among other
things, that the AJ erred when she found that complainant failed to
establish a prima facie case of race, sex, and reprisal discrimination
when CW-2 and CW-3, who performed the same core of job duties as
complainant, were paid at a FG-11 and FG-12 level while she was paid
at the FG-7 level in 1996. Complainant specifically asserts that the
agency provided justifications as to why CW-2 and CW-3 deserved to be
paid at the FG-11 and FG-12 levels, rather than offering evidence as to
why complainant was paid at the FG-7 level while doing the work required
under a FG-11 position description. She notes that she and the two
comparators worked in the same office, performing the same set of job
duties, and answering to the same managers. Complainant also maintains
that, with respect to her request for a promotion, the ATM admitted that
she was doing the same work as the comparators. Moreover, while she was
informed that a freeze existed on personnel actions in 2000, CW-3 received
an in-grade increase and then a promotion to a FG-12 position.
With respect to monetary sanctions, complainant asserts that the agency
failed to take any final action on the AJ's decision, and thus should
not be permitted to appeal or challenge any aspect on the AJ's decision
issued on December 23, 2002. Complainant further argues that the agency's
reliance upon the doctrine of sovereign immunity is misguided. However,
even if Re: The Equal Employment Opportunity Commission's Authority to
Impose Attorney's Fees Against Federal Agencies for Failure to Comply
with Order Issued by EEOC Administrative Judges (Department of Justice
Memorandum) (January 6, 2003), espousing sovereign immunity is binding,
complainant argues that this doctrine would not be effective in this
matter because it was issued after the AJ's decision was rendered on
December 23, 2002.
In its appeal, the agency asks that we affirm its final agency decision
finding no discrimination, and it reiterates in detail the reasons
that complainant's assertion that she was discriminated against on
the basis race, sex and reprisal fail. With respect to sanctions,
the agency asserts a two-fold argument: (1) sovereign immunity;
and (2) the inappropriateness of the sanction. First, the agency
maintains that, under the doctrine of sovereign immunity, the EEOC is
barred from imposing monetary sanctions against federal agencies for
violation of the AJ's orders. To bolster this argument, it relies on
the Department of Justice Memorandum, stating that the Commission lacks
authority to impose monetary sanctions on federal agencies for failure
to comply with Administrative Judges' orders. Second, with respect
to the appropriateness of the sanction, the agency asserts that the
interrogatory request was overly broad, and it reiterates the arguments
submitted to the AJ in its Response to Complainant's Motion for Sanctions,
dated May 17, 2002. See, Sanctions, supra. The agency further maintains
that it cooperated with discovery by providing hundreds of documents to
complainant, and answering those interrogatories that were relevant.
Finally, the agency contends that it was unaware that the sanction of
attorney's fees might be issued.
ANALYSIS AND FINDING
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual finding by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as �such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.� Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
The Equal Pay Act and Title VII
Complainant has raised a claim under the Equal Pay Act. The U.S. Supreme
Court articulated the requirements for establishing a prima facie case
of discrimination under the EPA in Corning Glass Works v. Brennan, 417
U.S. 188, 195 (1974). To establish a violation of the EPA, a complainant
must show that she received less pay than an individual of the opposite
sex for equal work, requiring equal skill, effort and responsibility,
under similar working conditions within the same establishment. Id.
at 195; Sheppard v. Equal Employment Opportunity Commission, EEOC Appeal
No. 01A02919 (September 12, 2000); see also 29 C.F.R. � 1620.14(a).
Once a complainant has met her burden of establishing a prima facie
case, an employer may avoid liability only if it can prove that
the pay difference is justified under one of the four affirmative
defenses set forth in the EPA, namely: (1) a seniority system; (2)
a merit system; (3) a system which measures earnings by quantity or
quality of production of work (also referred to as an incentive or
piecework system); or (4) a differential based on any other factor
other than sex. 29 U.S.C.�206(d)(1); Corning Glass Works, 417 U.S. at
196-97: Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982).
Job classification systems qualify as a �factor other than sex� only if
the systems accurately reflect job duties and/or employee qualifications.
The requirement of �equal work� does not mean that the jobs must be
identical, but only that they must be �substantially equal.� Id. (citing
Corning Glass Works, 417 U.S. at 203, n. 24; Homer v. Mary Institute,
613 F.2d 706, 714 (8th Cir. 1980); Laffey v. Northwest Airlines, Inc.,
567 F.2d 429, 449 (D.C. Cir. 1976)).
In the present case, complainant identifies the PMS, FG-11, position
description, and asserts that she, CW-2, and CW-3 all performed duties
interchangeably from said description after January 1996. Despite
complainant's representations, the Commission finds that complainant has
failed to establish a prima facie case under the Act. While complainant
has satisfied the first prong by showing that she was paid at a lower
grade level than her comparators during the relevant time, she has failed
to show that her work required equal skill, effort, and responsibility
as compared to CW-2 and CW-3. We note in this regard the AJ's specific
findings that complainant did not perform the labor relations duties at
the same skill level or at the same level of responsibility as CW-2 and
CW-3, and she failed to operate with the same degree of independence as
her comparators, requiring a greater degree of supervision. Therefore,
we find that complainant failed to put forth sufficient evidence that
the work she performed constituted equal work to that of the named
comparators.
Assuming arguendo that complainant established a prima facie case
under the EPA, we find that the agency has proven by a preponderance
of the evidence that the salary difference between complainant and the
comparators fell into a permissible statutory exception, namely, that
the salary difference was due to a reason other than sex. The agency
presented evidence that, CW-2 was a saved-grade, saved-pay former
supervisory PMS, FG-12, and at a later date, he performed additional and
different duties that were consistent with his FG-12 level. With respect
to CW-3, the agency explained that he focused his work on labor relations
duties and responsibilities. These duties, according to the agency,
carried greater responsibility than the Staffing and Benefits duties
performed by complainant from 1997 through 1999. Finally, the record
reflects that complainant had not met the time-in-grade requirement as
a FG-9 in January 1997.
Complainant maintains that the agency provided justifications as to
why CW-2 and CW-3 deserved to be paid at the FG-11 and FG-12 levels,
rather than offering evidence as to why complainant was paid at the FG-7
level while doing the work required under a FG-11 position description.
She notes that she and the two comparators worked in the same office,
performing the same set of job duties, and answering the same managers.
We find, however, that while complainant performed many of the duties
on the FG-11 position description, she required greater supervision and
performed them at a lower skill level and with less responsibility.
Moreover, in 1997 to May 1998, complainant performed her duties as
a Personnel Assistant, FG-7, under a different position description.
Finally, we note that, once complainant was performing the PMS duties, she
was subjected to time-in-grade requirements before she could be promoted
to the next grade. Based on the foregoing reasons, the Commission finds
that the agency has carried its burden to prove that a factor other than
sex was the reason for the existence of the salary differential between
complainant and comparators.
Complainant also alleged that she was subjected to disparate treatment
on the basis of race, sex, and reprisal with respect to not receiving
equal pay. In general, claims alleging disparate treatment are
examined under the tripartite analysis first enunciated in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must first
establish a prima facie case of discrimination by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination,
i.e., that a prohibited reason was a factor in the adverse employment
action. McDonnell Douglas Corp. v. Green, 411 U.S. at 802; Furnco
Construction Corp v. Waters, 438 U.S. 567 (1978). Next, the agency must
articulate a legitimate, nondiscriminatory reason for its action(s).
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
After the agency has offered the reason for its action, the burden returns
to the complainant to demonstrate, by a preponderance of the evidence,
that the agency's reason was pretextual, that is, it was not the true
reason or the action was influenced by legally impermissible criteria.
Burdine, 450 U.S. at 253; St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
After a careful review of the record, the Commission finds that the record
does not support a finding of intentional discrimination under Title VII
with respect to claim (1). As discussed above, the agency provided a
legitimate nondiscriminatory reason for its action, and complainant has
failed to show that those reasons were a pretext for discrimination.
With respect to claim (2) that, in March 2000, complainant was not
promoted to a FG-12 position and was denied a quality step increase,
we find that the AJ correctly determined that the agency articulated
legitimate nondiscriminatory reasons for its actions that complainant
failed to show were pretextual.<9> Specifically, as to the QSI, none
of complainant's coworkers received a QSI for the time in question, as
management determined that none were deserving; and, as to the promotion,
a FG-12 position was not shown to be available, and complainant did
not perform duties with the required scope and complexity to justify
a promotion to the grade 12 level. Complainant asserts that, with
respect to her request for a promotion, the ATM admitted that she
was doing the same work as the comparators. Even if the ATM, her
second-line supervisor, thought that complainant was doing the same work,
Supervisor-2 averred that, although complainant worked very hard and
was always willing to take on more responsibilities and assignments,
her added responsibilities and assignments were insufficient for a
promotion to the grade 12 level.<10> Specifically, he testified that
complainant required more supervision, and when she undertook some
duties in the labor relations area, she did not perform them at the
same level of skill or responsibility. In contrast to complainant,
CW-2 and CW-3 required less supervision and performed their work with
a greater degree of skill, complexity, and autonomy.<11> Complainant
has not shown that she performed her duties with the required scope and
complexity to justify a promotion to the grade 12 level. We note that,
although complainant provides a list
of her primary responsibilities as compared to that of the comparators',
complainant has not shown that her many duties required the same degree
of skill or responsibility, as those of CW-2 and CW-3.
In sum, the Commission finds substantial evidence to support the AJ's
determination that complainant failed to prove discrimination by a
preponderance of the evidence. The agency's final order, adopting the
AJ's finding of no discrimination, is hereby affirmed.
Sanctions
The agency has argued that, due to the doctrine of sovereign immunity,
the EEOC is barred from imposing monetary sanctions against federal
agencies for violations of Administrative Judge's orders. See,
Contentions on Appeal, supra. The Commission, however, possesses �the
authority to issue sanctions in the administrative hearing process
because it has been granted, through statute, the power to issue such
rules and regulations that it deems necessary to enforce the prohibition
on employment discrimination.� Matheny v. Department of Justice, EEOC
Request No. 05A30373 (April 21, 2005); see 42 U.S.C. � 2000e-16(c);
West v. Gibson, 527 U.S. 212 (1999) (The Supreme Court found that the
Commission was empowered to award compensatory damages to complainants
in the administrative process).
In Matheny, the Commission affirmed an Administrative Judge's finding
in favor of a complainant as a properly imposed sanction, where the
agency failed to provide three investigative reports more than 15 months
after the end of the regulatory 180-day investigative period. Therein,
we determined that Section 717 of Title VII of the Civil Rights Act of
1964, which prohibits employment discrimination by federal agencies,
provides for a waiver of the doctrine of sovereign immunity. Matheny,
supra (citing 42 U.S.C. � 2000e-16(c)). To the extent that federal
agencies are required to �comply with such rules, regulations, orders, and
instructions� which are issued by the Commission, and which the Commission
�deems necessary and appropriate to carry out its responsibilities�
to enforce the prohibitions on unlawful employment discrimination,
the Commission determined that delegating to its Administrative Judges
the authority to issue sanctions against agencies, and complainants,
is necessary and is an appropriate remedy which effectuates the policies
of the Commission. Matheny, supra (citing 42 U.S.C. � 2000e-16(b); see
also Exec. Order No. 11,375, 32 Fed. Reg. 14,303 (1967); Exec. Order
No. 11,478, 34 Fed. Reg. 12,985 (1969); and Exec. Order No. 12,067,
43 Fed. Reg. 28,967 (1978); West v. Gibson, 527 U.S. 212 (1999).
The Commission emphasizes that the Department of Justice recognized that
the Commission has authority to enforce its orders: �And arguably, EEOC
may have some inherent power to impose some type of sanctions designed
to maintain the integrity of its proceedings even against federal
agencies. One could infer this from the fact that Congress is presumed
to have made its statutory scheme effective.� Matheny, supra. (citing
Department of Justice Memorandum at 8).
The Commission has specifically deemed monetary sanctions, to include
attorney's fees and costs, �necessary and appropriate to carry out its
responsibilities.� See 42 U.S.C. � 2000e-16(c). As expressed in 29
C.F.R. Pt. 1614, the Equal Employment Opportunity Management Directive
for 29 C.F.R. Part 1614 (MD-110) (November 9, 1999), and Commission
precedent, the Commission has long utilized monetary sanctions as a tool
to ensure full compliance with Administrative Judges' orders. 29 C.F.R. �
1614.109(f)(3); MD-110, Chapter 7, Section III(D), n. 6 and Chapter 11,
Section VIII(C); Stull v. Department of Justice, EEOC Appeal No. 01941582
(1995); Comer v. Federal Deposit Insurance Corporation, EEOC Request
No. 05940649 (May 31, 1996). Indeed, awarding attorney's fees and costs
as a sanction ensures the integrity and efficiency of the administrative
process. No party has the opportunity to pick and choose which order
by an Administrative Judge it deems worthy of compliance.<12>
The Commission has exercised its inherent authority to enforce its Part
1614 Regulations by affording Administrative Judges broad authority
to conduct hearings, and thereby impose monetary sanctions.<13> 29
C.F.R. � 1614.109 et seq; MD-110, Chapter 7, Section III(D). This broad
authority includes the powers of Administrative Judges to conduct a
hearing and develop the administrative record, which includes overseeing
discovery; ordering supplemental investigation; and holding a hearing.
29 C.F.R. � 1614.109 et seq; MD-110, Chapter 7, Section III(D)(10) and
(13); Rountree v. Department of the Treasury, EEOC Appeal No. 07A00015
(July 17, 2001); Hale v. Department of Justice, EEOC Appeal No. 01A03341
(December 8, 2000); see also Matheny, supra. The parties are required to
abide by the orders and requests of the Administrative Judge to provide
the investigative file, documents, records, comparative data, statistics,
affidavits, and attendance of witnesses. MD-110, Chapter 7, Section III.
Noncompliance, without good cause shown, can result in sanctions against
the non-complying party. 29 C.F.R. � 1614.109(f)(3); see also MD-110,
Chapter 7, Section III(D), fn. 6 and Chapter 11, Section VIII(C);
see Rountree, supra; DaCosta v. Department of Education, EEOC Appeal
No. 01995992 (February 25, 2000). Where a party refuses to comply,
an Administrative Judge may:
(1) draw an adverse inference in favor of the non-complying party;
(2) consider the missing information to be favorable to the
non-complying party;
(3) exclude other evidence offered by the offending party;
(4) provide a summary disposition in favor of the non-complying party
on some or all of the issues without a hearing; and
(5) take other action deemed appropriate, e.g., order payment of
attorney's fees and costs and expenses by the non-complying party.
Id.
The Commission notes that an Administrative Judge has the authority to
impose attorney's fees and costs to ensure that parties obey discovery
or other orders. MD-110, Chapter 11, Section VIII(C), citing, 29 �
1614.109(f)(3)(v). In Stull v. Department of Justice, the Commission
ruled that a complainant may be awarded interim attorney's fees as a
sanction for failure to produce records requested during discovery, even
where she is unsuccessful on the ultimate issue of discrimination. Stull,
supra.; Shine v. United States Postal Service, EEOC Appeal No. 01972201
(December 12, 1998). Similarly, the Commission awarded costs in Comer,
where the agency acted in bad faith in failing to appear for properly
scheduled depositions. Comer, supra.; see also Fitch v. Department
of Navy, EEOC Appeal No. 01A03071 (August 15, 2002). Moreover, the
Commission has consistently upheld an award of monetary sanctions
for various types of egregious conduct by agencies. For example, in
Johnson v. Department of Navy, the Commission imposed sanctions where the
agency failed to appear for prehearing conference or submit preheating
statement in timely fashion. EEOC Appeal No. 07A20058 (February 5, 2002).
Similarly, in Graham v. Department of Transportation, we imposed sanctions
where the EEO investigator reported that she had extreme difficulty
interviewing key officials and that officials attempted to �stonewall�
the complaint process. EEOC Appeal No. 01986978 (August 17, 2001).
Finally, Administrative Judges possess the authority to order a party
to pay attorney's fees and costs to prevent a party's misconduct in the
future, and they must tailor their orders to each situation to respond
to the party's failure to show good cause for its actions, as well as to
equitably remedy the opposing party. See Barbour v. United States Postal
Service, EEOC Appeal 07A30133 (June 16, 2005); Harris v. United Stated
Postal Service, EEOC Appeal No. 07A30039 (October 5, 2005); Rountree,
supra; Hale, supra. By contrast, imposition of excessive attorney's
fees and costs, where a lesser sanction would be more appropriate, may
constitute an abuse of discretion. Id.; Cole v. Department of the Navy,
EEOC Appeal No. 01A42577 (February 16, 2005); Timerman v. United States
Postal Service, EEOC Appeal No. 07A20094 (Febrary 3, 2004).
In the present case, the AJ issued an Order Granting Complainant's
Motion For Sanctions due to the agency's failure to provide responses or
properly object to complainant's interrogatories nos. 7, 12, 13, and 14.
The agency appeals the AJ's order, arguing, among other things, that
the interrogatory request was overly broad. It further reiterates the
arguments submitted to the AJ in its Response to Complainant's Motion
for Sanctions, dated May 17, 2002. See, Background, supra.
The Commission finds that the AJ properly exercised her discretion, and
acted consistent with Commission regulations, the MD-110, and Commission
precedent in ordering the agency to pay attorney's fees. Moreover, the AJ
reasonably deemed relevant the information regarding the specific duties
performed by CW-1 before they were reassigned to complainant, CW-2, and
CW-3. Indeed, the agency reassigned said duties to complainant and her
comparators, and these duties are the focus of complainant's claim that
she was doing the work of a FG-11/12. The record further reveals that
CW-1 remained employed by the agency, and one or more of her supervisors
was still employed by the agency. With respect to interrogatory nos. 12,
13, and 14, we find that, while the agency contends that complainant's
request for information was unavailable, overly broad, or irrelevant, the
agency did not file objections to complainant's discovery in this matter.
Instead, it merely refused to provide responses.
In the AJ's Pre-Hearing Ruling, issued April 25, 2002, the AJ made
perfectly clear her expectation that the agency was to provide certified
responses to complainant's interrogatories. Nonetheless, the agency
refused to provide information clearly within its sole control that
could easily have been made available and fully comply with the order.
The agency only provided reasons for its objections after complainant
filed her Motion to Compel. Additionally, as the AJ noted in her
September 24, 2002 Order, the agency refused to identify individuals in
complainant's work unit; refused to identify anyone who is responsible
for Pay and Leave administration, even respecting complainant's facility;
and claimed it did not know what percentage of time complainant performed
Pay and Leave Administration duties. The agency further did not tell
complainant where such information could be found.
Therefore, for the foregoing reasons, the Commission finds that the
AJ appropriately tailored the sanctions in the present case, applied
the least sanction necessary to respond to the agency's failure to show
good cause for its actions, and equitably remedied complainant. We note
that the AJ clearly set forth attorney's fees as a possible sanction in
her Acknowledgment and Order issued to both parties. The Commission
emphasizes that the present record is devoid of evidence that the
AJ's decision to impose sanctions constituted an abuse of discretion.
Accordingly, the agency shall pay reasonable attorney's fees and
costs incurred in preparation of complainant's Motion for Sanctions.
The Commission notes that complainant is also entitled to reasonable
attorney's fees incurred in connection with the instant appeal, but
only to the extent that such fees pertain to the scope of attorney's
fees awarded as a sanction. See Smith v. Dept. of Transportation, EEOC
Appeal No. 01940320 (February 24, 1994) (Attorney's fees awarded where
agency failed to take corrective action ordered in its final decision);
and Work v. United States Postal Service, EEOC Appeal No. 019202029
(May 8, 1992).
CONCLUSION
For the foregoing reason, the Commission finds substantial evidence
to support the AJ's determination that complainant failed to prove
discrimination by a preponderance of the evidence. The agency's final
order, adopting the AJ's finding of no discrimination, is hereby affirmed.
With respect to sanctions, the Commission finds that complainant is
entitled to $612.50 for reasonable attorneys fees and costs incurred
in preparation of complainant's Motion for Sanctions. Accordingly,
the agency's decision is modified and remanded for further processing
in accordance with this decision and the Order below.
ORDER
The agency is ORDERED to take the following remedial action:
Within sixty (60) calendar days of the date this decision becomes final,
the agency shall pay complainant $612.50 for reasonable attorneys fees
and costs incurred in preparation of complainant's Motion for Sanctions
(dated May 9, 2002).
Complainant is entitled to an award of reasonable attorney's fees incurred
in the processing of the portion of this complaint regarding sanctions.
Complainant's attorney shall submit a verified statement of fees to the
agency -- not to the Equal Employment Opportunity Commission, Office of
Federal Operations -- within thirty (30) calendar days of this decision
becoming final. Within sixty (60) calendar days of the date of the
attorney's verified statement, the agency shall determine payment of
reasonable attorney's fees for the time complainant's attorney expended
on the issue of sanctions.
The agency is further directed to submit a report of compliance, as
provided in the statement entitled �Implementation of the Commission's
Decision.� The report shall include supporting documentation that the
corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
�Right to File A Civil Action.� 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. �Agency� or �department� means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
(�Right to File A Civil Action�).
FOR THE COMMISSION:
______________________________
Stephen Llewellyn
Acting Executive Officer
Executive Secretariat
__5-25-07________________
Date
1Due to a new data system, this case has been
redesignated with the above referenced appeal number.
2 Prior to January 1995, complainant worked as Lead Personnel Clerk,
FG-203-5. The record reflects that complainant was then promoted to the
following positions from January 1995 onward: retroactively promoted to
Personnel Assistant, FG-203-7, from January 8, 1995 to October 28, 1995;
temporarily promoted to Personnel Management Specialist, FG-201-7, from
October 29, 1995 to January 6, 1996; temporarily promoted to Personnel
Management Specialist, FG-201-7, from October 29, 1995 to January 6, 1996;
temporarily promoted to Personnel Management Specialist, FG-201-9, from
January 7, 1996 to May 11, 1996; reverted permanently to Lead Personnel
Clerk, FG-203-5, on May 12, 1996; permanently promoted to Personnel Clerk,
FG-203-6, on June 23, 1996; permanently promoted to Personnel Assistant,
FG-203-7, on July 7, 1996; temporarily promoted to Personnel Management
Specialist, FG-201-9, on May 24, 1998 for 120 days; permanently promoted
to Personnel Management Specialist, FG-201-9/11, effective August 16,
1998; and permanently promoted to Personnel Management Specialist,
FG-201-11, on January 17, 1999.
3 In November 1996, CW-2's supervisory duties were removed due to a
nationally-directed reorganization. He continued in both pay and grade
at the FG-12 level pursuant to the national reorganization policy for
reassigned employees.
4 Agencies can provide an employee with a QSIs for Outstanding
performance. A QSI is a �Permanent increase in an employee's rate of
basic pay of approximately 3%. The purpose of the QSI is to provide
appropriate incentives and recognition for excellence in performance by
granting a faster than normal step increase.� See Performance Planning
and Recognition System, Report of Investigation, Exhibit 12.
5 On February 9, 1996, complainant initiated EEO counseling on a
complaint of race discrimination. Complainant's complaint was settled
on May 29, 1996.
6 The interrogatories at issue read:
7. Please identify the specific duties performed by [CW-1] that were
reassigned to complainant, [CW-2], and [CW-3] after CW-1 left the
organization;
12. Please identify all personnel in the Resource Management Office
(ZAU-540) from January 1995 to present. Include race, sex, and prior
EEO activity;
Please identify the name, position, classification series, and grade
level of the person in the Great Lakes Regional office, AGL-10, that
is responsible for Pay Administration and Leave Administration;
Please identify the percentage of time complainant performed Pay
Administration and Leave Administration duties.
7 CW-1 was deemed to have performed all duties identified in the PMS,
FG-11, position description.
8 According to complainant, she did not receive a copy of the agency's
appeal. The Commission reminds the agency that it is required to provide
complainant and her counsel with copies of all documents submitted to
the Commission. See 29 C.F.R. � 1614.403(b).
9 The established order of analysis in discrimination cases, in
which the first step normally consists of determining the existence
of a prima facie case, need not be followed in all cases. Where the
agency has articulated a legitimate, nondiscriminatory reason for the
personnel action at issue, the factual inquiry can proceed directly to
the third step of the McDonnell Douglas analysis, the ultimate issue of
whether complainant has shown by a preponderance of the evidence that
the agency's actions were motivated by discrimination. United States
Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990).
10 Supervisor-2 testified that he reached these conclusions based upon
his experience as a Classification and Compensation Manager for nine
years in the regional office.
11 Complainant also contends that she was informed that the agency
had a freeze on personnel actions in 2000, but CW-3 received an
in-grade increase and then a promotion to a FG-12 position two months
later. Although the record remains unclear on this issue, whether CW-3
received the promotion is immaterial to the outcome in this case because
complainant failed to show that she was performing her position at the
grade 12 level.
12 Under the Equal Access to Justice Act, federal courts have found
that the federal government may be assessed attorneys fees and costs
as sanctions for abuses in the litigative process. See, e.g., Adamson
v. Bowen, 855 F.2d 668, 671 (10th Cir. 1988); M.A. Mortenson Co. v. United
States, 996 F.2d 1177, 1182 (Fed. Cir. 1993).
13 We note that, as required by Executive Order No. 12,067, � 1-303, the
Commission consulted with �the affected Federal departments and agencies
during the development of any proposed rules, regulations . . . ,� and the
regulations were then approved by the Executive Office of the President.
Matheny, supra.