Friday, September 17, 2010

1614 Has Teeth

As employment lawyers in D.C., our practice includes plenty of federal sector EEO complaints. Over the years, we’ve seen a lot of bad agency behavior when it comes to the processing of EEO complaints. For example: missing deadlines. This is a big no-no in the practice of law. If you miss a filing deadline without a solid-gold excuse (as in, “I’m very sorry, Judge, but our office, with all our client files inside, burned down last night, so I may need an extra week to get that brief filed”), your client is Out. Of. Luck. The courts and agencies like the EEOC have little patience with complainants who don’t follow the rules. Miss a deadline and your complaint will be dismissed without mercy. Yet federal employers, who are supposed to be playing by the same rules as complainants, all too often miss deadlines - whether set by the regs at 29 C.F.R. Part 1614, or by Orders from the Office of Federal Operations or Administrative Judges [AJs] in EEOC’s hearing units - and seem to suffer no consequences. I know of certain agency officials who regard the deadlines in OFO orders as merely “advisory.”

Well.

In two recent federal sector EEO cases, KCN obtained default judgments against agencies after they failed to comply with orders, from AJs or OFO or both, to produce complaint files and complete investigations within certain time frames. A default judgment for the complainant means that the complainant wins their case regardless of the merits simply because the other side has shown such disrespect for the EEOC and the EEO process that they have to be sanctioned, and sanctioned hard, to deter further such conduct.

In one case, after losing an OFO appeal to our client, the agency failed to comply with an Order to complete an investigation within 180 days and produce a complaint file to the local hearings unit. The agency compounded its problems by failing to respond to three separate orders from the hearing unit to produce the complaint file. After KCN moved for default judgment, the agency failed to respond to the motion. Only after the AJ granted default judgment did the agency respond, requesting reconsideration - but still without providing any explanation for its failure to obey the four Orders. Needless to say, reconsideration was denied.

In the second case, the agency failed to respond in any way to our motion for sanctions or motion for partial summary judgment, or to an Order to Show Cause issued by the AJ. Unsurprisingly, the AJ granted our client a default judgment.

Fair is fair. We hope the EEOC will continue to hold agency feet to the fire when it comes to completing investigations, and sending hearing files to the EEOC, on time. Justice delayed can easily become justice denied when someone’s job is on the line.

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