Equal Employment Opportunity Commission May 1993 casesAppellant filed a formal complaint alleging discrimination on the bases of race (Hispanic),1 national origin (Puerto Rico), sex (female), and reprisal (prior EEO activity) when she was allegedly harassed because of her attitude, language, and English comprehension from October 1992 until she was separated from employment on May 7, 1993. The agency conducted an investigation, provided appellant with a copy of the investigative report, and advised appellant of her right to request either a hearing before an EEOC administrative judge (AJ) or an immediate final agency decision (FAD). Appellant requested a hearing. On August 12, 1994, a hearing was held in which nine witnesses testified. On November 27, 1995, the AJ issued a Recommended Decision (RD) finding no discrimination, but also recommended that a sanction be imposed upon the agency to pay reasonable attorney's fees and costs for falsifying documents and testimony in contempt of the EEO process. The agency adopted the finding in the RD only in regards to the finding of no discrimination, but rejected the AJ's imposition of sanctions arguing that appellant was not a prevailing party. It is from this decision that appellant now appeals. The Commission has reviewed the record, consisting of the investigative report and exhibits, the hearing transcript, the hearing exhibits, the RD, the FAD, and the parties' statements on appeal. The Commission concludes that the AJ accurately set forth the facts giving rise to the complaint and the law applicable to the case. The Commission further concludes that the AJ correctly determined that appellant had not established, by a preponderance of the evidence, that the agency discriminated against her as alleged in his complaint. Accordingly, the Commission herein adopts the AJ's recommended findings of facts and conclusions of law in regards to the finding of no discrimination. In addition, we adopt the AJ's imposition of sanctions against the agency for its abuse of the discovery process. The Commission has previously awarded attorney's fees and costs as a sanction for an agency's bad faith conduct in failing to comply and cooperate in the discovery process forthrightly. See, e.g., Terrell v. Department of Health and Human Services, EEOC Request No, 04950018 (November 7, 1996)(citing Comer v. Federal Deposit Insurance Corporation, EEOC Request No. 05940649 (May 31, 1996); Stull v. Department of Justice, EEOC Appeal No. 01941582 (June 15, 1995). The Commission finds the rationale set forth in those decisions is applicable to the case before us. We also find that the AJ has set forth that rationale in her RD with such clarity that it need not be repeated here, and we find no basis in the record before us to disturb the AJ's determination. Accordingly, in light of the above, the final agency decision is AFFIRMED IN PART and REVERSED IN PART.Sue V. Harris, Appellant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
