Office of Federal Operations Denies Reconsideration of Commission Decision to Grant Compensatory Damages to Complainant Who Failed to Establish Prima Facie Case, Where Agency Did Not Comply With Order to Complete Investigation Within a Required Period of
Even where a complainant has not established a prima facie case, the Equal Employment Opportunity Commission (“the Commission”) may impose compensatory damages and order an agency to provide training and to consider taking appropriate disciplinary action against responsible management officials, where the agency has failed to complete an investigation into allegations of discrimination within the period of time ordered by an administrative judge, the Commission’s office of Federal Operations recently held in in Montes-Rodriguez v. Dep’t of Agriculture, EEOC Appeal No. 0520120295 (Dec. 20, 2012), denying USDA’s request for reconsideration of the Commission’s decision in Montes-Rodriguez v. Dep’t of Agriculture, EEOC Appeal No. 0120080282 (Jan. 12, 2012).
The Department of Agriculture (“USDA”) issued a notice of termination to Veronica Montes-Rodriguez, a WG-5 Animal Care Taker at USDA’s National Detector Dog Training Center, during her probationary period, citing nine alleged instances of unacceptable conduct. Montes-Rodriguez filed a formal Equal Employment Opportunity (“EEO”) complaint alleging discrimination on the basis of national origin. USDA initially dismissed the complaint for untimely EEO Counselor contact, but, on appeal, the Commission reversed USDA’s decision and remanded the matter to for processing, specifically ordering the agency to process Montes-Rodriguez’s complaint and issue her a copy of the investigative file within 150 days of the date the Commission’s decision became final.
On May 5, 2005, 52 days after the deadline set by the Commission expired, USDA initiated an investigation into Montes-Rodriguez’s complaint, providing Montes-Rodriguez a copy of the report of investigation 97 days later, on August 10, 2005. Montes-Rodriguez then requested a hearing before an administrative judge. In the subsequent discovery process, USDA successfully sought sanctions from the administrative judge against Montes-Rodriguez for attempting to evade discovery and for failing to litigate her case. Then, after denying requests by both parties for summary judgment, the administrative judge issued a Hearing Scheduling Order, in which the he sanctioned Montes-Rodriguez by limiting her witness list, in part, for failing to provide a witness list in a timely manner.
On June 15, 2007, Montes-Rodriguez filed a Motion for Sanctions against USDA, arguing that the agency failed to conduct an investigation into her complaint in accordance with the timeframe set by the Commission’s previous order, and that USDA submitted an incomplete report of investigation to the administrative judge. USDA responded by arguing that Montes-Rodriguez’s motion was an attempt to avoid responsibility for her own actions during the pre-hearing process, and that her lack of evidence was unrelated to any USDA action. The administrative judge agreed with USDA and found that Montes-Rodriguez could have corrected any deficiencies in the record during discovery, but that she failed to do so on her own accord. Following a hearing on the matter, the administrative judge issued a decision finding that Montes-Rodriguez had failed to establish a prima facie case of discrimination.
Montes-Rodriguez then appealed the administrative judge’s decision to the Commission. She argued that because USDA did not even assign an investigator to her complaint until after expiration of the 150 days it had to complete the investigation, without obtaining a written agreement for an extension of time from her, the administrative judge was wrong not to sanction USDA and render judgment in her favor. She also argued that the merits of her case warranted a finding in her favor.
In response, USDA argued that, because Montes-Rodriguez failed to establish a prima facie case of discrimination and failed to establish that USDA’s reasons for its actions were a pretext for discrimination, the Commission should affirm the administrative judge’s decision. USDA further argued that the administrative judge properly denied Montes-Rodriguez’s request for sanctions because Montes-Rodriguez’s own non-compliance with her procedural obligations also caused delay.
In its January 12, 2012 decision on the matter, the Commission reasoned that USDA was well aware that it was bound by the Commission’s previous decision ordering that the agency investigate Montes-Rodriguez’s complaint within a 150 day period, but that it delayed in doing so. Therefore, the Commission found, the administrative judge should have granted Montes-Rodriguez’s Motion for Sanctions against the USDA for its untimely completion of the investigation into Montes-Rodriguez’s complaint. Addressing USDA’s arguments on the appeal, the Commission noted that USDA cited no authority to support the proposition that the agency’s willful delay in processing Montes-Rodriguez’s complaint was less harmful, or less of a violation, than Montes-Rodriguez’s actions during the pre-hearing process.
In determining the appropriate sanction, the Commission emphasized that sanctions, while corrective, also act to prevent similar misconduct in the future. The Commission referenced precedent and reaffirmed that, “given the length of time that the processing of a federal sector EEO complaint can take, any delays past the time frames in the regulations can impact the outcome of [a complainant’s] claims.” Referencing the same source, the Commission further stated that, an agency “which treats the time deadlines for production of an adequately developed investigation as optional has a negative effect on the outcome not only of the immediate case, but also of any other cases under its jurisdiction.” The Commission stated that, issuing a default judgment in favor of Montes-Rodriguez would “effectively emphasize to the [USDA] the need to comply with Commission orders in a timely manner, as well as ensure that future [USDA] investigations are adequately developed for adjudication.”
In considering remedies, the Commission held that, while Montes-Rodriguez’s failure to establish a prima facie case of discrimination prevented the Commission from reinstating her into her former position with backpay and a restoration of benefits, Montes-Rodriguez was not prevented from an award of other remedies. Accordingly, the Commission remanded the case for a determination of her entitlement to compensatory damages and/or attorney’s fees. The Commission further ordered USDA to provide training to EEO management officials regarding their responsibilities concerning case processing and to consider taking appropriate disciplinary action against the responsible management officials (it is unclear from the decision whether the officials are those responsible for the alleged discrimination, or the officials responsible for the delayed processing of Montes-Rodriguez’s complaint).
USDA requested reconsideration of that decision from the Commission’s Office of Federal Operations, reiterating many of its earlier arguments for why Montes-Rodriguez’s failure to establish a prima facie case for discrimination should preclude her from receiving compensatory damages. USDA further argued that in other cases before the Commission, complainants only received compensatory damages after establishing a prima facie case.
The Office of Federal Operations dismissed USDA’s contentions and held that, while Montes-Rodriguez may not have established a prima facie case, the Commission has the inherent power to protect its administrative processes from abuse by any party and must ensure that agencies and complainants follow its regulations. Pointing out that the Supreme Court has noted that, to deny that a compensatory damages award from the Commission is appropriate would undermine the remedial scheme of the EEO process, which “encourag[es] quicker, less formal and less expensive resolution of disputes within the Federal Government and outside of court,” the Office of Federal Operations denied USDA’s request for reconsideration.
The Commission’s January 12, 2012 decision in Montes-Rodriguez v. Dep’t of Agriculture can be found here.
The Office of Federal Operations December 20, 2012 decision is currently unavailable for public viewing on the internet. FEDmanager will update this page when that deision becomes available.
Posted in Case Law Update