Digest of EEO Law, Volume XI, No. 4
EEOC Regulation 29 C.F.R. §1614.110 requires agencies to issue a final decision on an EEO complaint, and states that the final decision shall
consist of findings by the agency on the merits of each issue in the complaint and, when discrimination is found, appropriate remedies and relief . . . [and also] shall contain notice of the right to appeal to the Commission . . . 
In addition, in cases where an EEOC Administrative Judge has issued a Recommended Decision (RD), and the agency does not wish to adopt the RD as its own, the agency in its FAD must reject or modify the RD. 29 C.F.R. §1614.109(g). As we discuss below, the FAD should include an explanation of the agency's reasoning.
The Commission evaluates each final agency decision (FAD) when an appeal is filed. Even though the Commission's review on appeal is de novo, there are circumstances in which the Commission also may want to give direction to the agency about the quality of its FAD. On occasion, FADs are flawed in ways that impair the Commission's evaluation or the appellants' rights. More frequently, FADs have been challenged by appellants who believe that the FADs do not meet the Commission's regulatory standards. This article surveys Commission decisions which explain the requirements of an authoritative, valid final decision.
Findings by the agency. The Commission has been called upon to explain the scope of the regulatory language requiring "findings." It is essential that a FAD set out the agency's own findings, rather than merely adopting an investigator's findings. See Medeiros v. Department of the Air Force, in which the Commission reminded the agency of its obligation to issue its decision on the merits pursuant to the regulation cited above. In Medeiros, appellant alleged sexual harassment/hostile work environment and sex-based (non-sexual) harassment in numerous instances at work. The agency conducted an investigation of the complaint and then issued a one-paragraph FAD:
It is the [agency's] decision to adopt the finding of no discrimination on the issues raised in your complaint. This decision is based on a review and analysis of all evidence of record and a conclusion that the preponderance of the evidence supports this decision.
The Commission decided that the FAD failed to provide the appellant with a complete and accurate statement of the law applicable to the case, and failed to provide its own, not an investigator's, explanation of how the appellant's complaint fell short of those legal requirements. The Commission stated that the agency's failure effectively deprived the appellant of a meaningful right of appeal. The Commission conducted its own analysis of the facts of the case, applied appropriate legal principles, and decided that appellant failed to establish her claim of sexual harassment, but did establish that she was subjected to sex-based harassment. The Commission reversed the agency's final decision and directed the agency to take remedial actions.
Finding of discrimination by the agency. Where the agency has issued a finding of discrimination on the merits of a case, or otherwise admitted discrimination, it is bound by that finding. Davis v. Department of Justice. Appellant in Davis alleged that he was not selected for the position of GS-14 Police Community Relations Program Specialist because of his race (black). The agency selected a Hispanic candidate. The agency in its FAD found that the selectee's national origin (Hispanic) was a "significant, if not decisive, reason he was selected. Having found discrimination in this selection, the issue of the proper relief must be addressed." The agency went on to conclude that appellant would not have been hired even if the selection decision had been entirely free of impermissible considerations, and denied personal relief. On appeal, the agency stated that the conclusion in its FAD that national origin was improperly considered was incorrect, but that the ultimate result was the same. When the Commission addressed the case at the RTR stage, it observed that the agency early in its FAD analysis had cited to Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), which the Commission noted was a decision addressing the proper analysis for a mixed motives case. Although the agency may have intended to do a mixed motives analysis, stated the Commission, the agency nevertheless specifically found discrimination. The Commission held that the agency was bound by that finding. However, the Commission went on to conclude that appellant would not have been selected even absent the agency's discriminatory actions in the selection process.
Other attributes of an appropriate FAD. In Patterson v. Department of Agriculture, the Commission was called upon to decide which of two documents entitled "Decision" was in fact the final decision of the agency. The complaint, filed in 1992, involved an allegation that appellant was not selected for an agency foreign service position because of his daughter's disability. The complainant wrote to the Commission in 1995 to inquire about the processing of his complaint, which was still at the agency. The Commission contacted the agency, which informed the Commission that a final decision on the merits of the complaint was issued on February 21, 1995. The agency sent a copy of this document to the Commission and the Commission sent it on to the complainant. In that decision, the agency found discrimination and ordered relief, including individual relief for appellant and injunctive relief as well. Appellant subsequently received a second decision dated February 24, 1995, which dismissed his complaint for failure to state a claim. The second decision explained that appellant was notified that he would be provided full relief, and therefore his complaint was moot. The two decisions had similarities--they were signed by the same official and appeared to have the same appeal rights page.
The Commission concluded that the agency had to be held to the findings in the February 21 decision because the agency produced no evidence that it was not an official agency decision. The February 21 decision was a final decision because:
The Commission also found that the confusion caused by two diametrically opposed decisions precluded any cancellation for mootness. The complaint was remanded to the agency for the relief set out in the February 21 decision.
EEOC regulations require agencies to make findings on "each issue." Omitting one issue from a FAD can lead to a reversal or a vacating of a FAD on appeal. In Briand v. United States Postal Service, the agency's FAD omitted an allegation of failure to accommodate from appellant's disability discrimination complaint. Appellant had complained that the agency failed to allow him to work more than four hours of light duty daily. He also alleged that light duty work within his medical restrictions was available. The agency viewed the complaint as raising only a disparate treatment claim and did not address a reasonable accommodation issue at any time during its processing of the complaint, including its FAD on the merits. The Commission vacated the FAD in part for this reason, and ordered the agency to conduct a supplemental investigation of the accommodation issue. See also Gentry v. Department of Housing and Urban Development, in which the FAD failed to address a claim of reprisal which had been added to the complaint during processing. In that case, the Commission decided that the previous, appellate decision had erred in affirming the FAD, and ordered the agency to conduct appropriate processing of the reprisal allegation.
The failure to address an allegation raised in mid-processing constituted an improper de facto rejection of the allegation in Santos v. Department of the Navy. In that case, appellant failed to raise a claim of reprisal with an EEO Counselor, but did raise it in his complaint and his investigative affidavit. The agency failed to mention reprisal in its acceptance letter, failed to investigate the claim, and did not mention the claim in its FAD. As in Gentry, the Commission directed the agency to process the claim.
Once an agency receives the Recommended Decision (RD) of an AJ, it has 60 calendar days to accept, reject, or modify the findings and conclusions, or the relief recommended, and issue a final decision. 29 C.F.R. §§1614.109(g), 1614.110. If the agency fails to do so, the regulation provides that the AJ's Recommended Decision becomes the final decision of the agency. If the agency does reject or modify the RD, the agency must explain the reasons why. Cf. Smart v. Department of Justice, U.S. Marshals Service, where the Commission noted with approval the fact that an agency included in its FAD an explanation for rejecting the RD. See also Vanauken v. Department of the Air Force.
If an agency has adopted an AJ's findings as its FAD, the agency is bound by those findings. Simmons v. United States Postal Service. In that case, the agency subsequently sought to amend a FAD which had adopted an AJ's discrimination finding, an action which the Commission found improper. In Miller v. United States Postal Service, the Commission reversed a FAD for similar reasons. The agency had adopted the AJ's RD, including the award of compensatory damages. The FAD was issued more than 60 days after receipt of the AJ's decision. Later, after negotiations over the amount of such damages failed, the agency issued another FAD finding that appellant was not due any compensatory damages. The Commission ruled that the agency's decision on compensatory damages was without any legal effect, because it was issued more than 60 days after receipt of the RD.
On rare occasions, FADs which did not meet the timeliness requirement of 29 C.F.R. §1614.109(g) have been permitted to stand. The Commission recognized the validity of a FAD issued several months late in Li v. Department of Health and Human Services. The Commission stated that appellant did not show any harm he suffered for the delay. Since the agency had adopted the AJ's decision, there was no showing that the delay might have materially affected the ultimate outcome of his case. The Commission also permitted a late issuance where the AJ had sent the RD and complaint files to the agency attorney who had appeared at the hearing, rather than to the agency office properly designated to receive decisions from the EEOC. Robinson v. Department of the Army.
Moreover, once an AJ has issued a RD on a complaint, an agency cannot make an offer of full relief that differs from the relief set out in a RD. In Davis v. Department of the Treasury, the AJ issued a decision finding no discrimination on allegations 1 and 2 of appellant's complaint, and finding discrimination on allegations 3 and 4. The AJ made specific relief recommendations. The agency then issued appellant an offer of full relief on allegations 3 and 4, which differed from the AJ's recommended relief. The offer notified appellant that the agency would cancel allegations 3 and 4 if she failed to accept. Appellant signed the agency's offer. Thereafter the agency issued a FAD adopting the RD as to allegations 1 and 2 only. The Commission decided that the agency acted improperly when it informed appellant that it could cancel allegations 3 and 4 if she refused to accept the agency's offer of full relief that differed from the AJ's. The Commission therefore concluded that the agency's offer had no legal effect. Since the agency had failed to issue a final decision regarding allegations 3 and 4 within the requisite 60 days, the Commission ruled that the RD, including the recommended relief, became a final decision binding on the agency.
Similarly, once an AJ has issued a RD, the agency is not free to conduct a supplemental, ex parte, investigation on the complaint. In Terrell v. Department of Housing and Urban Development, the Commission found that such an investigation was improper. The Commission observed that EEOC regulations clearly do not authorize a supplemental investigation during the "relatively brief" 60-day deadline following an RD. In this case, the agency had utilized evidence from the supplemental investigation to reject the RD. The Commission noted that if EEOC regulations had been followed, the agency already would have had ample opportunity to investigate the complaint and to submit relevant information at the hearing stage. In addition, the Commission expressed concern that to permit belated agency investigations such as this one would place appellants in an untenable position on appeal.
Where discrimination is found, a final decision must encompass the appropriate remedies and relief. The Commission has held, in Brooks v. Department of the Air Force, that no decision is final until the relief is precisely determined. With the advent of the compensatory damages remedy, such a precise determination of relief may well require more than one final agency decision. This is because proof of damages may not have been provided by a complainant, or elicited by the agency, until a final decision finding discrimination issues. For example, in Lawrence v. United States Postal Service, the agency issued a FAD which contained a finding of discrimination and the authorization of an award of compensatory damages. The decision directed appellant to provide the agency with information in support of her compensatory damages claim. After evaluating appellant's submissions, the agency issued a second FAD ruling on the question of her entitlement to compensatory damages. The Commission entertained an appeal on this second FAD.
On occasion, the determination of relief may become more complex. In Shaw v. Department of the Air Force, the agency had issued a partial FAD finding discrimination in appellant's termination, and also issued a subsequent series of determinations on back pay computations and other elements of relief. The Commission determined that appellant's RTR could not be addressed because the agency had not yet issued a final agency decision that both delineated the relief granted, and provided appellant with appeal rights. The Commission noted that letters computing relief items, but containing no appeal rights, are not final decisions. The Commission recognized that implementing multiple remedial actions can be a "long and protracted process, and that therefore requiring a FAD for each remedial action could cause piecemeal litigation." Therefore, the Commission found that the agency, after taking all of its corrective actions, should have issued a final decision delineating the total relief granted, and providing appeal rights to the Commission.
 In addition, a final decision shall include notice of the right to file a civil action in federal district court.
 See e.g. Sando v. United $ Postal Service, EEOC Request no. 05920323 (February 1, 1993).
 EEOC Appeal No. 01956106 (January 9, 1998).
 EEOC Request No. 05931205 (September 1, 1994).
 EEOC Appeal No. 01953173 (January 26, 1996), RTR denied EEOC Request No. 05960299 (March 5, 1997).
 EEOC Request No. 05930621 (March 31, 1994).
 EEOC Request No. 05930211 (February 17, 1994).
 EEOC Request No. 05930922 (February 17, 1994).
 EEOC Appeal No. 01941741 (December 6, 1994), RTR denied, EEOC Request No. 05950277 (August 29, 1996).
 EEOC Request No. 05900637 (July 6, 1990) (applying predecessor regulation 29 C.F.R. §1613.221(b). Accord Harrison v. United States Postal Service, EEOC 05920078 (March 12, 1992) (once agency adopts AJ's decision, it is estopped from modifying it at a later stage).
 EEOC Appeal No. 01901075 (June 21, 1990), RTR denied, EEOC Request No. 05900957 (October 19, 1990).
 EEOC Appeal No. 01956109 (January 23, 1998).
 EEOC Request No. 05940683 (August 3, 1995).
 EEOC Request No. 05930965 (September 22, 1994).
 EEOC Request No. 05930804 (August 4, 1994) (applying predecessor regulation 29 C.F.R. §1613.221(b)).
 EEOC Request No. 05970336 (November 20, 1997).
 EEOC Request No. 05910615 (April 2, 1992).
 Pursuant to §102(a) of the Civil Rights Act of 1991, 29 U.S.C. §1981a.
 EEOC Request No. 05930370 (July 15, 1994).