07A00045
12-06-2002
Steve R. Matheny, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Steve R. Matheny v. Department of Justice
07A00045
December 6, 2002
.
Steve R. Matheny,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 07A00045
Agency Nos. A-96-1003, A-97-1020, A-98-1042
Hearing Nos. 140-96-8226X, 140-98-8146X, 140-A0-8158X
DECISION
Following its July 31, 2000 final order, the agency filed a timely appeal
which the Commission accepts pursuant to 29 C.F.R. � 1614.405. On appeal,
the agency requests that the Commission affirm its rejection of an EEOC
Administrative Judge's (AJ) finding that the agency discriminated against
complainant in violation of Title VII of the Civil Rights Act of 1964
(Title VII), as amended, 42 U.S.C. � 2000e et seq., and the Equal Pay Act
(EPA) , as amended, 29 U.S.C. � 206(d). The agency also requests that the
Commission affirm its rejection of the relief ordered by the AJ. For the
following reasons, the Commission REVERSES the agency's final order.
BACKGROUND
Complainant, a Paralegal Specialist, GS-11, employed at the agency's
United States Attorney's Office for the Eastern District of North Carolina
facility, filed a formal EEO complaint with the agency on September 30,
1995, (Complaint 1) alleging that the agency had discriminated against
him on the bases of race (Caucasian), sex (male), and reprisal for prior
EEO activity when:
(1) on June 2, 1995, management terminated his Special Assistant United
States Attorney (SAUSA) position and refused to convert him to the
position of Assistant United States Attorney (AUSA);
management compensated him for work performed as a SAUSA at the GS-11/1
and GS-11/2 grade levels, while compensating a female SAUSA performing
the same work at the GS-11/8 and GS-11/9 grade levels, and later
converting her to an AUSA position;
management compensated him for work performed as a SAUSA at a lower
grade and salary than that of female Paralegals in the USAO performing
the same work;
management discounted his efforts to change his job description and
grade level from GS-11 to either GS-12 or GS-13 because he contacted
the Executive Office for the United States Attorneys Office (EOUSA)
Equal Employment Opportunity Staff (EEOS) concerning his discrimination
and Equal Pay Act claims;
management terminated his SAUSA position because he brought his EPA
claims to the attention of the EOUSA Evaluation and Review Staff (EARS);
management of the USAO paid him, a male, a lower salary than they paid
two female AUSAs for the performance of equal work; and
the USAO hired two African-American females as AUSAs and refused to
hire him for either of these two positions.
The agency dismissed allegation 7 for untimely EEO Counselor contact.
The Commission affirmed that dismissal. Matheny v. Department of Justice,
EEOC Appeal No. 01966578 (September 24, 1997), request for reconsideration
denied, Matheny v. Dept. of Justice, EEOC Request No. 05980092 (November
8, 1999).
On March 21, 1997, complainant filed a second EEO complaint (Complaint
2) alleging that the agency discriminated against him based on reprisal
for filing his first complaint when:
his evaluation for the period April 1, 1995, through March 31, 1996,
was downgraded;
management continued to fail to promote him, as reflected by its failure
to award him either a grade increase, a Quality Step Increase, or a
monetary performance award, despite the fact that all other Paralegal
Specialists within the Eastern District of North Carolina appeared to
have received one of these awards for the same period; and
he was suspended without pay on November 12, 1996.
On July 6, 1998, complainant filed a third complaint (Complaint 3)
alleging that the agency discriminated against him:
based on race and color when he was continually passed over for AUSA
positions; and
based on reprisal for filing his previous complaints when management
denied him training opportunities which were available to other members
of the office, including (a) denial of administrative leave to attend
a continuing legal education (CLE) course in February 1998, (b) denial
of a request to attend multi-district ethics training in late 1997, and
(c) denial of Office of Legal Education (OLE) training opportunities
since filing his first complaint.
Complainant requested a hearing on Complaints 1 and 2, which were assigned
to an EEOC AJ. Complainant subsequently informed the AJ (AJ-1) that he
was engaged in EEO counseling for a third complaint, and requested that
the proceedings be stayed so that his complaints could be consolidated.
In the interim, complainant's case was reassigned to a different AJ
(AJ-2). On August 31, 1998, AJ-2 issued an order remanding the first two
complaints for consolidation with the third, and directing the agency to
refer the entire matter for a hearing when the processing of Complaint
3 was completed.
By letter dated March 11, 1999, complainant requested a hearing on all
three complaints. Complainant noted that more than 180 days had elapsed
since Complaint 3 had been filed, and since AJ-2 had remanded Complaints
1 and 2 for consolidation with Complaint 3.
By letter dated April 21, 1999, to the Assistant Director, EOUSA/EEOS
(the Assistant Director), AJ-2 inquired whether that office was aware
of complainant's hearing request, the status of complainant's case or
request, or any other information which would be helpful in addressing
complainant's concern. AJ-2 did not receive a response from the agency.
By letter dated June 26, 1999, complainant again requested a hearing.
Thereafter, on July 6, 1999, AJ-2 issued an order directing the agency to
refer the consolidated complaints for hearing within 15 days. AJ-2 did
not receive a response from the agency.
On October 12, 1999, AJ-2 issued an Order to Show Cause why sanctions
should not be imposed for the agency's failure to comply with AJ-2's
June 26, 1999, order. AJ-2 noted the possibility that she would issue
a decision fully in favor of complainant.
On an unspecified date in November 1999, the Assistant Director telephoned
AJ-2 and stated that he had been ill and therefore unable to respond to
the Show Cause order in a timely manner. The Assistant Director also
stated that he would return the investigative files for the first two
complaints to AJ-2 and would forward the file for the third complaint,
which was almost complete, when it was completed. AJ-2 directed the
Assistant Director to reply to the Show Cause order in writing, with an
explanation of his delay in responding.
On November 12, 1999, AJ-2 received a package from the agency containing
the correspondence files for the first two complaints, but not the
investigative files. The files were accompanied by a cover letter
dated June 11, 1999 from the Assistant Director in which he states
that he is responding to AJ-2's April 21, 1999 inquiry. This letter
notes that the agency is forwarding the investigative reports for the
first two complaints, and will forward the third when it is completed.
AJ-2 did not receive this letter prior to its inclusion in the November
12, 1999 package, and it was never received by complainant.
By letter dated December 23, 1999, and postmarked December 30, 1999,
the agency responded to AJ-2's Show Cause order. The agency, by the
Assistant Director, stated that it did not receive AJ-2's July 6, 1999
order and therefore was unable to respond. The Assistant Director further
stated that he did respond to AJ-2's April 21, 1999 letter by way of
the agency's June 11, 1999 letter. The Assistant Director stated that
the investigation of the third complaint had been completed, and that
the investigative file would be forwarded to AJ-2 as soon as it was
received by his office, along with the investigative files for the first
two complaints.
As of March 27, 2000, the agency still had not provided the requested
files to AJ-2. On that date, AJ-2 issued a decision in which she found
that the agency had, without good cause shown, failed
to respond fully and in a timely fashion to her orders and her
requests for the investigative files. In particular, AJ-2 found that
the agency did not mail its June 11, 1999 letter until November 1999,
and in the interim ignored her July 6, 1999 order. AJ-2 rejected the
agency's contention that it had not received the order, noting that it
was served on the Assistant Director and an agency representative at
their letterhead addresses, and that complainant had received the copy
which was served on him. AJ-2 noted that even if the agency had not
received the July 6, 1999 order, it had received the Show Cause order,
which summarized the preceding order and included the instruction to
refer complainant's complaints for hearing.
AJ-2 noted that while the deadline for response to the Show Cause order
was November 1, 1999, the agency did not respond until December 30, 1999.
She further noted that although the Assistant Director stated that
he was late in responding because of illness, there was no mention of
illness nor any other reason stated in his written response; moreover,
his written response was not submitted until more than one month after his
telephonic response, with no explanation provided for that delay, either.
In addition, the agency failed to serve its response on complainant.
On the basis of the foregoing, AJ-2 concluded her decision by finding
in favor of complainant as to all allegations of his three complaints,
noting instances where even the incomplete record before her contained
evidence of the agency's retaliatory animus toward complainant. AJ-2
then awarded relief as follows: conversion of complainant's position
to Assistant United States Attorney, retroactive to June 2, 1995;
recision of the suspension; back pay; and upgrade of his performance
appraisal for the period April 1, 1995, through March 31, 1996, to
�substantially exceeds expectations.� AJ-2 noted that complainant
apparently represented himself throughout the proceedings, and therefore
would not be entitled to attorney's fees, but afforded complainant the
opportunity to submit evidence of fees paid to other attorneys and/or
costs, as well as compensatory damages. AJ-2 also ordered the agency to
provide complainant with training on an equal basis with all other AUSAs,
and directed the agency to post a notice of the finding of discrimination.
On April 11, 2000, the agency filed a Motion for Reconsideration with
AJ-2.<1> The agency requested that AJ-2 impose a lesser alternative
sanction and allow the matter to proceed to hearing. The agency stated
that its �clear negligence� in this matter was occasioned by changes
in EOUSA's personnel and by unexpected illness. The agency stated
that the Assistant Director had left the agency February 11, 2000,
and had been in transition for a period of time prior to that date.
The agency further stated that the Assistant Director had been ill for a
substantial period subsequent to the October 12, 1999 Show Cause order.
The agency argued, inter alia, that it acted neither willfully nor in
bad faith. Complainant replied to the agency's motion noting, in part,
that the Commission's regulations do not require a finding of willfulness
or bad faith.
On June 27, 2000, AJ-2 issued a decision denying the agency's motion<2>,
and denying complainant's requests for attorney's fees and compensatory
damages, but awarding certain costs. AJ-2 denied the request for
attorney's fees noting that complainant had not submitted the evidence
required to substantiate his claim. AJ-2 awarded complainant costs
totally $102.21. AJ-2 denied the request for compensatory damages,
noting that complainant's evidence on damages addressed only the agency's
conduct and not any injury suffered by him as a consequence, and therefore
appeared to be a claim for punitive damages.
The agency appealed AJ-2's decision to the Commission. In its appeal,
the agency argues that AJ-2 abused her discretion by issuing a finding
of discrimination as a sanction; that the relief awarded by AJ-2 was
not appropriate, in that the agency had presented clear and convincing
evidence that complainant would not have been selected as an AUSA;
but that AJ-2's decision was correct with regard to the denial of
attorney's fees and compensatory damages, and the assessment of costs.
The agency contends, in part, that AJ-2 should have informed the agency
that its response to the Show Cause order was deficient before issuing
her March 27, 2000 decision, and that the agency did not show �flagrant
disregard� for her orders.
Complainant subsequently cross-appealed solely on the matter of attorney's
fees and costs. complainant seeks reimbursement for monies expended in
unsuccessful attempts to secure representation and further costs than
those awarded by AJ-2.
ANALYSIS and FINDINGS
Propriety of the Sanction Imposed
The Commission's regulations provide, in relevant part, that a party
which �fail[s] without good cause shown to respond fully and in timely
fashion to an order of an administrative judge, or requests for the
investigative file� is subject to the imposition of one of several
sanctions, up to and including �a decision fully or partially in favor
of the opposing party ....� 29 C.F.R. � 1614.109(f)(3). A showing that
the non-complying party acted in bad faith is not required. See Cornell
v. Department of Veterans Affairs, EEOC Appeal No. 01974476 (November
24, 1998). Rather, it is within the administrative judge's discretion
to impose sanctions where the non-complying party fails to show good
cause for the conduct at issue. Id. The sanction imposed should not
be so severe as to result in inequity, but should not be so lenient as
to fail to serve as a deterrent. See Hale v. Department of Justice,
EEOC Appeal No. 01A03341 (December 8, 2000).
The agency had possession of the remanded complaints and the new third
complaint for more than 180 days without concluding the investigation
of the third complaint. The agency failed to respond to AJ-2's initial
April 21, 1999 inquiry regarding the consolidated cases. The agency then
failed to respond to AJ-2's July 6, 1999 order. The agency claims not to
have received the July 6, 1999 order, but the order was properly served
on the agency and was not returned undelivered. The agency responded
to the October 12, 1999 show cause order telephonically, promising to
forward the two investigative reports which had long been completed,
and to forward the third report when it was completed. The agency,
however, failed to reply to AJ-2's directive to respond to the show cause
order in writing, and delivered to AJ-2 only the correspondence files
for the first two complaints, and those not until November 12, 1999.
Further, the files were accompanied by a letter dated June 11, 1999 which
addressed only AJ-2's original April 21, 1999 inquiry. The agency did not
respond to the show cause order in writing until December 30, 1999, again
promising to forward the investigative files for all three complaints,
noting that the investigation of the third complaint had been completed.
Nonetheless, as of March 27, 2000 the agency still had not provided the
investigative reports to AJ-2, and in fact did not do so until after
she issued her decision of that date imposing sanctions.
The agency posited arguments against the imposition of the sanction
chosen by AJ-2, including that the illness and subsequent departure
of the Assistant Director precluded timely response, and that it had
not acted in bad faith. The Commission, however, finds the agency's
arguments every bit as unpersuasive as AJ-2 found them. While the agency
may not have acted in bad faith, no such showing is required. Further,
the explanation proffered by the agency does not rise to the level of
good cause shown. See DaCosta v. Department of Education, EEOC Appeal
No. 01995992 (February 25, 2000). The agency's non-compliance transpired
over the course of roughly one year. It is inconceivable that the agency,
once aware of the Assistant Director's incapacity, failed to make adequate
provision to carry on the routine business of the EEOS. Such conduct
shows clear disregard for the integrity of the EEO process. Accordingly,
for the reasons set forth above, as well as those further expressed by
AJ-2, the Commission finds that AJ-2 properly imposed the sanction of a
finding in favor of complainant as to all claims of the three complaints
for which the agency failed to provide investigative reports.
Propriety of the Remedy Awarded
AJ-2 awarded complainant relief as follows: conversion of complainant's
position to Assistant United States Attorney, retroactive to June
2, 1995; recision of the suspension; back pay; and upgrade of his
performance appraisal for the period April 1, 1995, through March 31,
1996, to �substantially exceeds expectations�; and costs totaling $102.21.
She denied attorney's fees and compensatory damages on the ground that
complainant had not adequately substantiated his entitlement to either,
noting that he had not been represented by counsel and that his request
for damages cited factors pertaining to punitive rather than compensatory
damages.
Complainant appealed only AJ-2's determination with regard to attorney's
fees and costs. Having reviewed AJ-2's decision in this regard, the
Commission finds no basis to disturb either the denial of attorney's
fees or the award of costs limited to $102.21.
With regard to the relief awarded, the agency contested only the
conversion of complainant's position to that of an Assistant United
States Attorney (with attendant back pay and benefits), arguing that it
had presented clear and convincing evidence that complainant would not
have been converted from a SAUSA to an AUSA position even in the absence
of any discriminatory motive. However, as remarked upon by AJ-2 in her
March 27, 2000 decision, the record contains evidence which supports
a finding that complainant's job performance was competent, if not
stellar, notwithstanding that the agency failed to afford complainant
training opportunities. Accordingly, the Commission is not persuaded
that the agency has established by clear and convincing evidence that
complainant would not have been converted to an AUSA position absent
unlawful discrimination.
Therefore, after a careful review of the record, including arguments
and evidence not specifically discussed in this decision, the Commission
REVERSES the agency's final order and remands the matter to the agency
to take corrective action in accordance with this decision and the
Order below.
ORDER (D0900)
The agency is ordered to take the following remedial action:
The agency shall appoint complainant to an Assistant United States
Attorney position, retroactive to June 2, 1995, together with back pay
and benefits;
The agency shall remove the one-day suspension from complainant's
personnel file and any other official records where it may appear, and
restore complainant's pay for that day, with interest, pursuant to 29
C.F.R � 1614.501;
The agency shall tender to complainant costs in the amount of $102.21;
The agency shall revise complainant's performance evaluation for the
period April 1, 1995, through March 31, 1996, to reflect an overall
performance rating of �substantially succeeds expectations.� in addition,
the agency shall tender to complainant any awards that such a rating
would have warranted;
The agency shall ensure that complainant is provided with training on
an equal basis with all other AUSAs, and that neither his race, color,
sex, nor prior EEO activity are factors in determining whether he is
entitled to training;
The agency shall post a notice of the finding of discrimination, as set
forth below in the paragraph entitled, �Posting Order�; and
The agency shall consider taking disciplinary action against the
employees identified as being responsible for the discriminatory treatment
perpetrated against complainant. The agency shall report its decision.
If the agency decides to take disciplinary action, it shall identify the
action taken. If the agency decides not to take disciplinary action, it
shall set forth the reason(s) for its decision not to impose discipline.
The agency shall determine the appropriate amount of back pay (with
interest, if applicable) and other benefits due complainant, pursuant
to 29 C.F.R. � 1614.501, no later than sixty (60) calendar days after
the date this decision becomes final. The complainant shall cooperate
in the agency's efforts to compute the amount of back pay and benefits
due, and shall provide all relevant information requested by the agency.
If there is a dispute regarding the exact amount of back pay and/or
benefits, the agency shall issue a check to the complainant for the
undisputed amount within sixty (60) calendar days of the date the
agency determines the amount it believes to be due. The complainant
may petition for enforcement or clarification of the amount in dispute.
The petition for clarification or enforcement must be filed with the
Compliance Officer, at the address referenced in the statement entitled
�Implementation of the Commission's Decision.�
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 of the
agency's calculation of back pay and other benefits due complainant,
including evidence that the corrective action has been implemented.
POSTING ORDER (G0900)
The agency is ordered to post at the United States Attorneys Office for
the Eastern District of North Carolina copies of the attached notice.
Copies of the notice, after being signed by the agency's duly authorized
representative, shall be posted by the agency within thirty (30) calendar
days of the date this decision becomes final, and shall remain posted
for sixty (60) consecutive days, in conspicuous places, including all
places where notices to employees are customarily posted. The agency
shall take reasonable steps to ensure that said notices are not altered,
defaced, or covered by any other material. The original signed notice
is to be submitted to the Compliance Officer at the address cited in
the paragraph entitled �Implementation of the Commission's Decision,�
within ten (10) calendar days of the expiration of the posting period.
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 6, 2002
__________________
Date
This Notice is posted pursuant to an Order by the United States Equal
Employment Opportunity Commission dated which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq.,has occurred at this facility.
Federal law requires that there be no discrimination against any
employee or applicant for employment because of that person's RACE,
COLOR, RELIGION, SEX, NATIONAL ORIGIN, AGE, or PHYSICAL or MENTAL
DISABILITY with respect to hiring, firing, promotion, compensation,
or other terms, conditions, or privileges of employment.
The Department of Justice, United States Attorneys Office for the
Eastern District of North Carolina, supports and will comply with such
Federal law and will not take action against individuals because they
have exercised their rights under law.
The Department of Justice, United States Attorneys Office for the Eastern
District of North Carolina, has been found to have discriminated against
the individual affected by the Commission's finding. The Department
of Justice, United States Attorneys Office for the Eastern District
of North Carolina, shall place the affected individual into the
position denied him on account of discrimination and tender back pay
and benefits; expunge a suspension previously imposed on the affected
individual; upgrade the affected individual's performance appraisal;
provide training to the affected individual; and consider discipline
against the perpetrators of the discrimination. The Department of
Justice, United States Attorneys Office for the Eastern District of
North Carolina, will ensure that officials responsible for personnel
decisions and terms and conditions of employment will abide by the
requirements of all Federal equal employment opportunity laws and will
not retaliate against employees who file EEO complaints.
The Department of Justice, United States Attorneys Office for the Eastern
District of North Carolina, will not in any manner restrain, interfere,
coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by, or who participates in
proceedings pursuant to, Federal equal employment opportunity law.
_________________________
Date Posted: ____________________
Posting Expires: _________________
29 C.F.R. Part 1614
1Although AJ-2 issued a finding on the merits of the complaint on March
27, 2000, she indicated to the parties that her decision would not be
final until she issued a subsequent �final version� of her decision also
addressing attorney's fees, costs, and compensatory damages.
2The AJ noted that, on an unspecified date prior to issuance of this
decision, the agency finally had provided the requested investigative
files.