Cindy B. Waller, Complainant,v.Norman Y. Mineta, Secretary, Department of Transportation, Agency.

Equal Employment Opportunity CommissionMay 25, 2007
0720030069 (E.E.O.C. May. 25, 2007)

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.