Volume XX, No. 2
Office of Federal Operations
The Digest of EEO Law is a quarterly publication of EEOC's Office of Federal Operations (OFO)
Carlton M. Hadden, Director, OFO
Douglas A. Gallegos, Acting Director, OFO's Special Services Staff
Editor: Arnold Rubin
Writers: Robyn Dupont, Gerard Thomson, Arnold Rubin, Joseph Popiden
The Digest is now available online through EEOC's homepage at www.eeoc.gov.
The previous issue of the Digest (Winter 2009) detailed the EEO process with regard to the processing of individual EEO complaints of discrimination, in accordance with 29 C.F.R. Part 1614—and further amplified in EEOC Management Directive 110 (MD-110)--from the initiation of the counseling process through the investigation (Parts 1 through 4). The principles reflected in those procedures are also intended to “guide the processing of class complaints of discrimination under 29 C.F.R. § 1614.204.”1 This issue of the Digest will detail the remainder of the EEO process, beginning with Part 5 ("Class Complaints") and concluding with Part 8 ("Settlement Agreements and Claims of Agency Noncompliance"). The reader is reminded that, as with all Digest contents, the following material is not intended as legal advice, but, rather, to inform. The goal is not to provide an exhaustive study of complex legal subjects. For a more detailed discussion of the topics addressed in this Digest, see EEOC’s website at: www.eeoc.gov and the statutes, regulations, decisions, guidance, and directives cited in these articles. Some decisions cited to for illustrative purposes may have appeared in previous Digests. Digest summaries and articles themselves do not have the force of law and the reader is advised to look to the actual decisions and other sources discussed for a more precise understanding of applicable EEO law.
By Joseph Popiden2
When a person files a formal complaint in the administrative process attempting to represent a group of potential complainants who have the same or similar claims of employment discrimination, this constitutes a class complaint.3 When an agency receives such a complaint, it cannot investigate the complaint or dismiss the complaint or otherwise continue processing the case. Rather, within 30 days of receipt of the complaint, the agency must forward the complaint to the appropriate EEOC District or Field office hearings unit for a determination by an AJ as to whether the class should be certified.4
The class case usually comes to the EEOC hearings unit already counseled as a class complaint and filed as such. The class complaint file may only contain the counselor’s report and the complaint itself. The file may contain more documents if complainant raised class allegations later in the process.5
The AJ’s first and foremost duty is to protect the interests of the members of the class, who ordinarily do not participate in the process but whose rights may be affected.6 The AJ can provide technical help to the class agent (the person who purports to act for the class). The AJ can ask the class agent to clarify definitions of the class and the bases and issue(s). Additionally, the AJ can redefine the class at any point in the proceedings.7
As with an individual complaint, the AJ can dismiss the class complaint on grounds set forth at 29 C.F.R. § 1614.107(a).8 If the AJ dismisses a class complaint, and the agency agrees with the dismissal decision, the complainant can then appeal to OFO or file a lawsuit in federal court.9
Before certifying a class, the AJ must find that the complaint satisfies the elements of numerosity, commonality, typicality, and adequacy of representation,10 defined as follows:
(1) Numerosity means the class is so numerous that joinder of the claims is not practicable. While EEOC has not set a minimum requirement in regulations or administrative decisions to establish numerosity, EEOC has not certified a class complaint with fewer than 30 class members.
(2) Commonality means that the members of the class have claims that are the same or similar in nature. A significant factor in commonality is the source of the policy or practice, which may be agency-wide, headquarters or regional office-wide, a single facility, or coming from the agency head or a particular director, manager or supervisor. Another significant factor is whether the policy affects a particular protected group (by race, sex, religion, etc.) or whether it affects all persons in general.
(3) Typicality means that the class agent’s claims must be typical (as to issue and basis) of the claims of the members of the class. For example, a class agent’s personal claim about a promotion may not be typical of a class claim regarding discipline. However, a class agent’s personal claim about being denied training would be typical of a class claim regarding the denial of training opportunities for the class.
(4) Adequacy of representation means that the class agent has the means, ability and commitment (including absence of a conflict of interest with the class) to pursue the class’ interests, and that the class representative (attorney for the class) has experience, or can associate with someone who has the experience, in both employment discrimination matters and class actions.11
The AJ may permit a certain amount of pre-certification discovery, limited to matters relating to the requirements to certify the class or the agency’s motion to dismiss the class complaint pursuant to 29 C.F.R. § 1614.107(a).12 The class agent may request employee lists that identify membership in a protected group that forms the basis for the class complaint such as race, sex or national origin. The class agent may also request a list of employee’s government e-mail addresses to contact potential class members. The AJ can require the agency to produce statistical evidence, even if the agency must purchase software to do a statistical analysis. The AJ can also require the agency to produce electronic versions of documents.
Class certification does not include an actual hearing or oral argument. The AJ issues a decision on certification from the written record. If the AJ denies certification, the case returns to the agency for processing as an individual complaint. The class agent can appeal the denial of certification to OFO. If the AJ certifies the class, then the case will proceed to a hearing on the merits of the class complaint. The AJ may also conditionally certify a class complaint when the case satisfies all of the conditions for certification, except adequacy of representation. The AJ in that case will allow the class agent a period of time to retain competent counsel. When conditionally certifying a class, the AJ “should refer complainants to any attorney referral systems that may be operating in EEOC district offices or other attorney referral services for assistance in obtaining adequate legal representation.”13 The agency may appeal the AJ’s decision certifying a class to OFO.14
For an agency to settle a class complaint at the certification stage, it must provisionally accept class certification for the purposes of settlement. In such settlements, the parties must obtain the AJ’s approval.15 A class agent may also drop the class allegations and settle individual allegations with the agency, without the AJ’s approval.16
Class complaints subsume any individual complaints at the pre-complaint, investigation and hearing stages of the administrative process that the definition of the class covers. Individual complainants may not “opt out” of the class.17 If the AJ certifies the class complaint, the agency must notify potential class members. An agency may file a motion with the AJ seeking to stay the notification in order to determine whether the agency will file an appeal of the AJ’s order certifying the class.18
Once a class has been certified, the AJ guides the discovery process of a merits class action, because usually the agency has not issued an ROI or conducted an investigation. The AJ’s decision on the merits of a class complaint is a recommended one.19 The agency will have 60 days from receipt of the AJ’s findings and recommendations to “issue a final decision, which shall accept, reject, or modify the findings and recommendations of the administrative judge.”20 If the agency does not issue its final decision within 60 days, then the AJ’s “findings and recommendations shall become the final decision. The agency shall transmit the final decision to the agent within five days of the expiration of the 60-day period.”21 The final decision shall inform the agent of the right to appeal to the EEOC’s Office of Federal Operations or file a civil action in federal court.22 A decision finding discrimination or finding no discrimination is binding on all members of the class, including those who had pending individual cases in the administrative process. 23
If discrimination is found, the remedies may include systemic relief for the class and any individual relief, where appropriate, regarding the personnel action or matter that was the subject of the complaint.24 Class members who believe they are entitled to individual relief may file a claim for relief with the agency head or EEO Director within 30 days of receiving the final decision. The AJ will retain jurisdiction over the complaint to resolve any disputes involving individual relief claims.25
By Joseph Popiden
Within 30 days after the agency issues the Report of Investigation (ROI), or where 180 days have passed since complainant filed the formal complaint, and the agency has not produced an ROI, the complainant may request that an EEOC AJ conduct a hearing on the case.26 The complainant must make this request directly to the EEOC hearings unit, and copy the agency on the request. Appendix J to EEO MD-110 contains a list of EEOC District/Field Offices, their addresses and their jurisdictions; this information also is available on the EEOC’s web site at www.eeoc.gov/offices.html. Sometimes complainants file more than one complaint, and the second or third complaint may still be in the investigative process when the 180 days expire on the first complaint. The agency may have consolidated these two complaints for case processing, allowing the agency more time (a maximum of 360 days) to complete the two investigations. However, the complainant may still request a hearing on the first complaint after 180 days.
Once an EEOC hearings unit receives a request for hearing, it will order the agency to produce the ROI. If the agency does not produce the ROI, the EEOC may issue a “show cause” order directing the agency to show why the EEOC should not impose sanctions on the agency for failure to produce the ROI. The agency must forward the ROI to the EEOC hearings unit with the name of an official who has administrative responsibility for the complaint, but who does not represent the agency or litigate the case. The agency designates another person as its representative, who will litigate the merits of the agency’s position.
The hearings unit will notify the parties through the “Acknowledgment and Order” (“Acknowledgment”) that it has assigned the case to an AJ who assumes responsibility to complete processing the case through the hearing. The Acknowledgement informs the parties of the EEOC’s regulations governing processing of the case at hearing and requires the parties to cooperate to avoid delays. The parties must provide phone numbers, e-mail addresses and facsimile numbers so that the AJ can readily contact them. The Acknowledgement also requires the parties to designate their respective representatives (within 10 days of receipt of the Acknowledgment), and allows the parties to initiate discovery to cure any defects in the ROI and secure additional information or witness statements in advance of the hearing. The Acknowledgement informs the parties that the AJ will notify them about the pre-hearing conference and the hearing on the complaint and reminds the agency to arrange for the hearing site and the transcription of the hearing. The Acknowledgement serves as notice that the hearing process is now formal and that the parties should observe all deadlines to avoid the AJ’s imposing sanctions.
If a party cannot comply with the time limits set in the Acknowledgement, the party must alert the opposing party and the AJ. The party seeking postponement should file a motion or request with the AJ for a change in a due date. The party should: (1) file the motion with the AJ well in advance of the due date; (2) explain the need for the postponement; (3) propose a new due date for the shortest practicable postponement; (4) copy the opposing party; (5) inform the AJ if the opposing party objects to the postponement, and (6) draft a proposed order for the AJ to sign.
If the AJ finds the ROI deficient, the AJ will order the agency to complete a supplemental investigation, which should occur over a shorter time frame than the original ROI. Or, the AJ may order the parties to work with each other to produce the needed information in the discovery process. The AJ may also order the parties to attend a settlement conference or mediation. Once the EEOC receives the case file and issues an Acknowledgment to the parties, the AJ will review the case for a potential dismissal from the hearing process under one of the grounds set forth at 29 C.F.R. § 1614.107(a). Either the agency may move for dismissal or the AJ may independently initiate a decision upon finding facts in the case that warrant dismissal. The AJ may dismiss the complaint if: (1) the complaint fails to state a claim upon which relief can be granted or states a claim that is already pending or the EEOC has already decided; (2) complainant failed to contact an EEO counselor within 45 days of the alleged discriminatory event or complainant failed to file a formal complaint within 15 days of receiving notice of final counseling interview; (3) complainant filed a law suit in federal court on the same matter; (4) complainant has elected to raise the matter in a negotiated grievance procedure that permits allegations of discrimination to be raised, or in an appeal before the Merit Systems Protection Board (MSPB); (5) the complaint is moot or alleges a proposal to take a personnel action or other preliminary step to taking a personnel action; (6) complainant cannot be located, provided that reasonable efforts have been made to locate the complainant and the complainant has not responded within 15 days to a notice of proposed dismissal sent to his/her last known address; (7) complainant fails to cooperate; (8) the complaint alleges dissatisfaction with the processing of a previously filed complaint (i.e,. a "spin-off' complaint); or (9) there is a clear pattern of misuse of the EEO process.
Discovery permits the parties to obtain evidence regarding any matter relevant to, for, or against the case and can proceed without AJ involvement. The Acknowledgment generally requires that parties complete discovery within 90 days of its receipt. The AJ can extend this time period based on the complexity of the case and the needs of the parties. The AJ also has the discretion to limit or preclude the parties from engaging in discovery. The methods of discovery include: interrogatories, requests for production of documents, requests for admissions, depositions, stipulations and requests for medical examination. Unless the AJ orders otherwise, the parties must exchange requests for written discovery (e.g., interrogatories, requests for production of documents, and requests for admissions) within 20 days of the start of the authorized discovery period.27 Failure to initiate written discovery within the first 20 days can constitute a waiver of the right to pursue discovery.
Interrogatories are written questions directed to a party, requiring written answers by oath or affirmation, to obtain basic information in advance of, or instead of, depositions. Generally, AJs limit parties to no more than one set of interrogatories, containing no more than 30 interrogatories, including sub-parts, but may grant additional interrogatories on motion of a party, depending on the complexity of the case.
A party may request relevant documents that the opposing party possesses or controls, including writings, graphs, charts, and photographs. The opposing party must either provide copies or permit the requesting party to inspect and copy the documents. Generally, AJs limit parties to requesting one set of 30 documents, including subparts. While a party cannot combine several classes of documents into a single request, satisfying a single request may require producing multiple documents. The AJ may grant additional document requests on motion of a party, depending on the complexity of the case.
Oral depositions consist of questions posed under oath or affirmation to a witness with relevant knowledge. Parties may conduct a reasonable number of depositions. A notice of deposition must specify the date, time, and place of the deposition. Deponents (i.e., the person whose testimony is being sought) must appear for properly noticed depositions. Agencies must make current federal employees available for depositions and grant the deponent official time. Failure to appear may cause the AJ to impose sanctions, but the AJ cannot order a non-federal employee to appear at deposition. A court reporter records the questions of the deposer and the responses of the deponent. The non-deposing party may cross examine the deponent. Where the deponent is unavailable for the hearing, the AJ may admit the deposition in lieu of live testimony. Unless otherwise ordered by the AJ, the party noticing (i.e., seeking testimony) the deposition pays for the deposition.
During a deposition, a party may make objections on the record but must still respond unless the objection is based on a privilege (e.g., attorney-client privilege). The parties may request the AJ to rule on the objection. The parties may telephone the AJ during a deposition to rule on an objection or as to matters such as counsel’s conduct or the deposition’s length. The AJ will make the ruling "on the record" so that the court reporter will transcribe it. If the dispute involves too complex a question to permit an immediate ruling, the AJ may instruct the parties to brief the issue, and, if overruling the objection, the AJ will allow the parties to exchange the information by further deposition, interrogatory or other means.
A request for admission narrows the issues at the hearing by establishing facts beforehand. A party may submit requests (no more than 30, including subparts) for the opposing party to admit or deny, in writing, certain facts. If a party admits to a certain fact, this fact is conclusive for purposes of the case. The parties can also stipulate, or agree, to certain facts (but not conclusions of law). The AJ enters into the record any facts to which the parties stipulate.
The AJ may encourage the parties to cooperate and to participate in informal methods of discovery so the parties may narrow the scope of the hearing and reduce litigation costs.28 Agencies cannot restrict access to non-management employees who voluntarily cooperate with informal discovery.
When a party does not receive requested evidence, the party may file a motion to compel, asking the AJ to compel the other party to comply with the moving party’s request for evidence. The non-moving party will then respond. The AJ will usually rule on a motion to compel within 20 days of receipt of the other party's statement opposing the motion or after the deadline for opposition. The AJ may deny the motion to compel when it does not include: (1) a copy of the request; (2) the response to the discovery request, if any; (3) the argument in support of the motion; and (4) a certificate that the moving party conferred with the opposing party or made a good faith effort to do so to attempt to resolve the dispute. The AJ may deny the motion to compel if the discovery request is irrelevant, over-burdensome, repetitious, or if the information sought is privileged. Once the AJ has ruled, the parties must comply with the ruling.
During discovery, a party may move for a protective order to limit disclosure, dissemination, or reproduction of information obtained through discovery. The AJ may grant a protective order to shield a party or person from annoyance, embarrassment, or undue burden or expense or to provide an alternative means for resolving a discovery dispute.29 The AJ may grant a protective order to protect proprietary, fiduciary, classified, or privileged information. The AJ may also impose sanctions against a party for violating a protective order.30 If a party wants to bring any facts learned in discovery to the AJ’s attention, the party must introduce the facts into the record either as a submission that accompanies a motion for summary judgment or as evidence at the hearing.
The AJ may issue summary judgment, on the AJ’s own initiative or by motion of either party, under 29 CFR § 1614.l09(e). Section § 1614.109(g)(2) allows the opposing party to file an opposition to the motion for summary judgment within 15 days of receipt of the motion. The party opposing summary judgment must show that material facts are in dispute, using documents or sworn/affirmed statements about the disputed material facts. The AJ may interpret a party’s failure to respond to a motion for summary judgment as either agreement with the motion or as a refusal to dispute the motion often resulting in the non-moving party losing the case because the AJ grants the motion. Summary judgment is appropriate if the case requires no additional evidence for the AJ to make a decision, and if there is no genuine dispute as to any material fact and no issue of credibility. A fact is material if it helps prove either an element in the theory of discrimination or the defense against the allegation of discrimination. The AJ can then apply the law to the undisputed facts and issue a decision without a hearing.
Prior to the hearing, the AJ conducts a pre-hearing conference, either in person or by telephone, depending on the locations of the parties. The AJ will confirm logistical matters with the parties, including place and time of the hearing and the need for any accommodations or equipment. The AJ will confirm the alleged bases and issues of the case and rule on which witnesses are necessary, from the lists the parties present. The party offering the witness must explain what the proposed witness will testify to and why that testimony is relevant. The AJ will rule on any objections to witnesses and on any pending motions. The AJ will address whether the parties will be making opening or closing remarks or submitting briefs (written arguments), and whether the case will consider damages evidence or whether the AJ will bifurcate the proceeding (dividing the hearing into separate liability and damages hearings). The AJ may also ask the parties about the possibility of settlement.
When the hearing begins, only the AJ, the court reporter, the complainant, complainant’s representative, the agency representative and, occasionally, a “technical advisor” (or, sometimes, an EEOC intern/law clerk) are present. The AJ makes an opening statement, briefly describing the nature of the case. At this point the parties may make brief opening statements and then present the first witness, usually the complainant. The AJ or the court reporter will administer an oath or affirmation, and then the complainant will testify. Complainant’s representative will question the complainant, but, if complainant has no representative, complainant will recite his or her view of the theory and the facts of the case. Then, the agency representative will “cross-examine” complainant about that testimony. The AJ may also question the complainant.
Since federal sector hearings are closed proceedings, i.e., not open to the public, and often involve information that is protected against disclosure, the AJ will take precautions to prevent witnesses from discussing their testimony with other witnesses or persons. The AJ will admit each subsequent witness to the hearing room separately and exclude each witness when s/he has finished testifying. The AJ will briefly instruct each witness about the hearing procedures and put each witness under oath or affirmation. Following the conclusion of the witness’ testimony, the AJ will instruct the witness not to discuss this testimony outside of the hearing room.
If a party wishes to introduce documents obtained through discovery that are not already in the ROI or otherwise in the record, the AJ will instruct the party to mark the exhibit as Complainant’s or Agency’s Exhibit, followed by a number. The party can then show the exhibit to the witness, ask the witness to identify and give testimony about it, and then offer it for admission into evidence. The AJ may retain the original exhibits, or deliver them to the court reporter who will append them to the hearing transcript.
At the close of testimony the AJ may ask or direct the parties to present oral or written closing statements. If the AJ intends to immediately issue a decision from the bench (read orally to the parties and to the court reporter who transcribes it), the AJ may suspend the proceeding for a brief time to prepare the decision. Otherwise, the AJ will close the record. If the AJ does not issue a bench decision, the AJ will issue a decision after receiving the hearing transcript.
When finding discrimination, the AJ has several remedies available.31 If finding that the agency terminated, suspended, denied pay or leave or failed to promote complainant for discriminatory reasons, the AJ will order back pay to the complainant.32 The AJ can also order the agency to alter or purge records and personnel files, particularly in cases of discipline and annual performance evaluations. The AJ can order the agency to restore annual and sick leave and, in cases involving religious or disability discrimination, to make workplace accommodations.
The AJ also can order the agency to provide front pay, where it is not possible to return complainant to an agency position, such as where the complainant left due to a hostile work environment and alternative positions are not available. The AJ may order the agency to train managers and other employees in relevant federal anti-discrimination laws and policies. The AJ can recommend, but not order, that the agency discipline management officials or coworkers found to have been responsible for the alleged discriminatory practices. When discrimination is found, the AJ will order the agency to post a notice that the EEOC has found discrimination at the agency or some component thereof.
In addition to the above “equitable” remedies designed to put the prevailing complainant in the position s/he was in had the discrimination not occurred, the AJ can order the agency to pay compensatory damages for violations of Title VII, the Rehabilitation Act and, effective November 21, 2009, the Genetic Information Nondiscrimination Act (GINA). These are damages for pain and suffering (e.g., emotional distress), out-of-pocket medical expenses and future medical expenses resulting from the alleged discrimination. Compensatory damages are not available for violations of the ADEA or EPA. The AJ also cannot order punitive damages intended to punish the agency.
Finally, if the complainant was represented by an attorney, the AJ may award attorney’s fees for violations of Title VII, the Rehabilitation Act, and, effective November 21, 2009, GINA. Attorney’s fees awards are not available to complainants for violations of the ADEA or EPA, and are not available to compensate the services of non-attorney representatives. Where attorney’s fees awards are made, the complainant’s attorney must submit a “verified statement of attorney’s fees (including expert witness fees) and other costs” within 30 days of receiving the decision.33
By Robyn M. Dupont34
The Commission receives appeals filed by a number of different parties. For example, complainants can appeal from final agency actions on AJ decisions or final agency decisions.35 Agencies that have issued a final order declining to implement the decision of an EEOC AJ after a hearing also must file an appeal. In addition, a class agent, individual class members, or the agency can file an appeal concerning the certification of, or decisions regarding, a class complaint. Grievants can appeal the final decision of the agency, the arbitrator, or the Federal Labor Relations Authority (FLRA) on a grievance that raised employment discrimination; and a party can petition the EEOC to a review a decision by the MSPB concerning a mixed case appeal where discrimination has been raised. This section will focus on appeals filed by complainants from final agency actions on EEOC AJ decisions or final agency decisions, and those filed by agencies that have issued final orders declining to implement an EEOC AJ’s decision.
Filing an Appeal and Time Limits
As stated, a complainant can appeal a final agency action or final agency decision.36 The complainant must file an appeal within 30 days of his or her receipt of an agency’s final action or decision.37 A complainant can also file an appeal when a decision has been issued by an AJ, and the agency has not issued a decision or filed an appeal within 40 days. Finally, a complainant may appeal an agency’s alleged noncompliance with a settlement agreement or alleged noncompliance with the agency’s own decision.38 With regard to a breach of settlement claim, a complainant can appeal directly to the Commission if the agency fails to issue a decision on the matter within 35 days of being notified of the alleged breach or 30 days after the agency has issued a decision denying noncompliance.39
An agency that does not fully implement all portions of an AJ’s decision must appeal within 40 days of receipt of the hearing file and AJ’S decision.40 The agency must simultaneously issue its final order and file an appeal.41 Failure to both issue a final order and file an appeal within the 40 day period will result in the dismissal of the appeal. For example, in Donald L. Gibby, et al. v. U.S. Postal Service,42 the agency filed an appeal brief with copies sent to the complainants within 40 days, but did not issue a final order within that time. The Commission ultimately dismissed the appeal because the agency failed to follow the procedures set forth in the EEOC’s regulations.43 An agency counsel or responsible official who disagrees with the agency’s decision may not appeal that action.
If an agency files an appeal from the AJ’s decision, the complainant has the opportunity to file a cross-appeal if he or she disagrees with some aspect of the AJ’s decision. The complainant can do this in the same manner as an initial appeal from a final agency action. This can occur, for example, when the AJ finds in favor of the complainant, but the complainant is not satisfied with the remedy. The complainant may be precluded from challenging any aspect of the AJ’s decision with which he or she is not satisfied if the complainant does not file a cross-appeal.
Whenever a party appeals to the Commission, or whenever they submit a statement in support of, or in opposition to, the appeal, they must give a copy to the opposing party. A statement or brief from the complainant in support of the appeal must be submitted to the Commission within 30 days of filing the notice of appeal, while a statement or brief from the agency in support of its appeal must be submitted within 20 days of filing the notice of appeal.44 Any statement or brief in opposition to an appeal must be submitted to the Commission, with a copy sent to the opposing party, within 30 days of receipt of the opposing party’s statement, or, if no statement or brief supporting the appeal is filed, within 60 days of receipt of the appeal.
After an Appeal is Filed
When the Commission receives an appeal filed by a complainant, the appeal and any supporting documents are placed in an appeal file. The complainant will receive an acknowledgment letter explaining his/her rights and responsibilities on appeal. The letter will also identify the docket number assigned to the case.45 The Commission simultaneously sends a notice of the appeal and a request for a copy of the complaint file to the agency.46 Any briefs or statements that are later submitted by either party in support of or opposition to the appeal will be added to the appeal file. The process for handling appeals filed by agencies that have issued a final order declining to implement the decision of an EEOC AJ is identical to the process of appeals from complainants, except that an acknowledgment letter requesting the complaint file is sent to the agency and the complainant is provided notice of the agency’s appeal.
Standards for Review on Appeal
The De Novo Standard
The Commission will generally apply a de novo standard of review on appeal. This means that the Commission is not bound by the findings of fact and legal determinations made by the agency in its final action.47 The de novo standard applies to appeals filed from the dismissal of a claim, an agency’s final decision on the merits, or where an AJ issued a decision without a hearing. The de novo standard also applies to legal determinations made by either the agency or the AJ regardless of whether a hearing was held.
The Commission will review the documents, statements, and testimony including any timely and relevant submissions of the parties. Under the de novo standard, the Commission issues its decision based upon its own assessment of the facts and interpretations of law. In other words, there is no presumption that the previous decision maker was correct in his or her interpretation and application of the law. The Commission is not limited by the issues raised on appeal. On the other hand, the Commission is not compelled to raise issues on its own, where the parties have failed to do so.
The Substantial Evidence Standard
In appeals filed after a hearing before an AJ, however, the Commission will review the AJ’s factual findings under the more deferential substantial evidence standard of review. This standard requires OFO to follow the AJ’s factual findings so long as there is substantial evidence in the record that a reasonable person could have found as the AJ did. Where a hearing was held, the Commission will distinguish factual determinations from legal determinations, and give deference to the AJ’s factual determinations under the substantial evidence standard. Credibility findings by an AJ based upon the demeanor or tone of voice of a witness will be accepted unless documents or other objective evidence contradict the testimony. This more deferential substantial evidence standard does not apply where the AJ issues a decision without a hearing. The substantial evidence standard also does not apply to the AJ’s legal determinations, which are reviewed under the de novo standard.
Burdens of Proof
Under the substantial evidence standard, the party challenging the AJ’s findings of fact bears the burden on appeal to show that the AJ’s determinations were not supported. This burden does not exist in a de novo review. In appeals from the dismissal of a complaint, the agency has the burden of providing evidence and/or proof to support its final decision.48 On appeals from merits decisions finding no discrimination, the complainant bears the burden of proof to show that discrimination occurred.
A statement or brief in support of an appeal should explain the reasons why the party believes the agency’s or AJ’s decision either should be overturned or affirmed. The brief should discuss any errors that the party believes were made below, and show how the error adversely impacted the outcome of the case. This can include not only errors within a final decision, but also errors in the report of investigation or in an AJ’s rulings during the hearing, such as rulings to admit or exclude certain pieces of evidence from the hearing. The brief should address the facts the party considers important to the case. These can include facts specifically noted in the underlying decision, or facts the party believes were not addressed by the decision maker. If a party believes that the wrong law or regulation was applied to the facts of the case, that matter should be raised in a brief on appeal. Likewise, the brief should explain why the party believes that the underlying decision did not correctly interpret the law.49
After the Decision on Appeal
Requests for Reconsideration
The Commission’s decision on appeal becomes final unless either party files a request for reconsideration.50 A request for reconsideration must be filed within 30 days of the receipt of the appellate decision, or within 20 days of receipt of a request for reconsideration by the other party.51 The request must include proof of service on the other party, or the request may be denied. The brief or statement in support of the request also must be filed within the 30-day period. The opposing party will have 20 days from receipt of the other party’s request to submit a statement or brief in opposition.
The EEOC’s regulations allow for the Commission to grant a request for reconsideration if the party can show that the appellate decision involved a clearly erroneous interpretation of material fact or law; or the decision will have a substantial impact on the policies, practices or operation of the agency. Given these limited review criteria, a request for reconsideration is not a second appeal. The Commission will not consider new evidence in connection with a request for reconsideration unless it was not reasonably available on appeal.
The Commission’s decision on a request for reconsideration is final. There is no subsequent right by either party to request further reconsideration by the Commission. There is one exception in cases when the appellate decision addressed procedural issues, and the decision on request for reconsideration considered the merits of the claim for the first time.52 In these rare situations, parties may request reconsideration of the merits issues. If the decision remands the complaint to the agency for further action, the parties retain the rights of appeal and reconsideration with respect to any subsequent decision issued by the agency.
For complainants, the Commission’s regulations specify when they may remove a complaint from the administrative system and file as a civil action in federal court. A complainant has the right to file a civil action in an appropriate U.S. District Court at any time after 180 days from the date of filing an appeal with the Commission if no appellate decision has been issued.53 In addition, a complainant who has filed a complaint under Title VII, the ADEA and the Rehabilitation Act may file a civil action in an appropriate United States District Court within 90 days of receipt of the Commission's final decision on an appeal.54 The filing of such a civil action covering the matters raised in the administrative complaint will terminate the EEOC’s administrative processing of the pending appeal.
Enforcement of Agency and Commission Decisions
A complainant may appeal to the Commission for enforcement of a final agency decision where the claim is that the agency is not complying with its own decision. Before filing such an appeal, the complainant must notify the agency’s EEO Director, within 30 days, of when he or she knew or should have known that the agency failed to comply with the final agency decision.55 If the agency fails to issue a decision addressing the alleged noncompliance, or if the complainant is not satisfied with the agency’s decision, then the complainant may appeal to the Commission. Such an appeal may be filed 35 days after serving the agency with allegations of noncompliance, or within 30 days of receiving the agency’s decision on the matter.
In addition, a complainant may petition the Commission for enforcement of its appellate decision.56 The petition shall specifically set forth the reasons why the complainant believes that the agency is not complying with the decision. The Commission shall take all necessary actions to ascertain whether the agency is implementing the decision. When the Commission determines that an agency is not complying with a prior decision, or where an agency has failed or refused to submit a report of compliance, the Commission will notify the complainant of the right to file a civil action for enforcement of the appellate decision.
By Gerard Thomson57
The Equal Employment Opportunity Commission's (EEOC or Commission) strong support for settlement attempts at all stages of the EEO complaint process is codified in the EEOC’s regulations. Specifically, the EEOC regulations state that, “Each agency shall make reasonable efforts to voluntarily settle complaints of discrimination as early as possible in, and throughout, the administrative processing of complaints, including the pre-complaint counseling stage."58 Additionally, public policy favors the amicable settlement of disputes and encourages agencies and employees to seek resolution of EEO complaints through settlement at any time.59
Settlement Agreements in the EEO Process
In the informal/pre-complaint stage of the EEO complaint process, the parties may settle their dispute through the efforts of EEO Counselors or the use of Alternative Dispute Resolution (ADR).60 In the formal complaint stage, a settlement may be reached through the use of ADR, by the parties directly, through their representatives, or through the efforts of an EEOC AJ. Parties are encouraged to be creative in resolving an employment dispute and may agree to settle a complaint for relief that may be different from that which a court might order, as long as it is no greater than what a court might order.61 The regulations provide that any settlement agreement shall identify the claims resolved.62 Settlements do not require a specific admission of discrimination. The EEOC regulations provide that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties.63 To be considered knowing and voluntary, settlements of age discrimination complaints must further comply with the Older Workers’ Benefit Protection Act (OWBPA) requirements for waivers of age claims under the ADEA.64
Claims of Agency Noncompliance
With Settlement Agreements
If a complainant believes that the agency has failed to comply with the terms of a settlement agreement, s/he shall notify the EEO Director in writing of the alleged non-compliance within 30 days of when the complainant knew or should have known of the alleged noncompliance.65 The agency, and, if appealed, the Commission may make a factual determination as to when the complainant acquired a reasonable suspicion of breach for timeliness purposes. The 30-day time period may be extended where the complainant offers adequate justification for such an extension. 66
The complainant may request that the terms of the settlement agreement be specifically implemented or, alternatively, that the complaint be reinstated for further processing from the point processing ceased.67 The agency shall resolve the matter and respond to the complainant, in writing.68 If the agency has not responded to the complainant, in writing, or if the complainant is not satisfied with the agency’s attempt to resolve the matter, the complainant may appeal to the Commission for a determination as to whether the agency has complied with the terms of the settlement agreement (or agency decision).69
The Commission may exercise its discretion to consolidate and address two or more appeals alleging noncompliance of settlement agreements in a single decision when each matter arises from a common set of facts.70 In addition, the Commission may request that parties submit whatever additional information or documentation it deems necessary or may direct that an investigation or hearing on the matter be conducted.71 For example, in Stacy F. Barker v. U.S. Postal Service,72 the Commission remanded a matter to the agency when, instead of first notifying the agency of the alleged breach, complainant prematurely appealed the matter to the Commission and there was insufficient evidence in the record to ascertain whether the agency had breached the settlement agreement.
Standard of Review of Breach Claims
The Commission has held that a settlement agreement constitutes a contract between the employee and the agency, to which ordinary rules of contract construction apply.73 Under these rules, the Commission will find a contract void if coercion, misrepresentation, misinterpretation or mistake occurs during the formation of the contract.74 Concerning contract formation, the Commission examines coercion or duress claims with heightened scrutiny. A complainant asserting a claim that s/he was compelled to enter into the settlement agreement must show that there was an improper threat of sufficient gravity to induce assent to the agreement and that the assent was in fact induced by threat. Such a threat may be expressed, implied, or inferred from words or conduct, and must convey an intention to cause harm or loss. A complainant's bare assertions will not justify a finding of coercion.75 The complainant has the burden of establishing coercion.
In Jacqueline E. Thompson v. Department of the Army,76 for example, the complainant requested reinstatement of her underlying complaint, alleging that she was coerced into signing a negotiated settlement agreement (NSA) because the investigator made misrepresentations during the mediation and refused to hold a fact-finding conference (FFC). The complainant further alleged that the agency representative misrepresented to her attorney information concerning the dismissal of her case by the AJ. The agency, in its final decision finding no breach, noted that the investigator was prepared to proceed with the FFC when the complainant informed him she did not think the FFC would be necessary because she believed she had an agreement with the agency. The agency also found that complainant’s allegation concerning the agency’s misrepresentation of when the AJ dismissed her case occurred after she had signed the NSA. The Commission agreed, finding no evidence that the complainant was threatened with harm or loss to induce her to sign the NSA and thus, determined that complainant had not met her burden of establishing coercion.77
In applying ordinary rules of contract construction to settlement agreements, the Commission follows the reasoning set forth in Baker v. Chicago Fire & Burglary Detection, Inc.,78 in which the court held that a valid contract must be based upon consideration where some right, interest, profit, or benefit accrues to one party or some forbearance, detriment, loss, or responsibility is given, suffered, or undertaken by the other. Where the promissor receives no benefit and the promissee suffers no detriment, the whole transaction is a nudum pactum (i.e., “a naked promise”), that is, a simple unenforceable promise involving no legal consideration.79
The Commission notes that generally, as long as some legal detriment is incurred by each party as part of the bargain, the adequacy or fairness of the consideration in a settlement agreement is not at issue. The Commission has long held that a complainant may validly waive claims arising from discriminatory acts or practices that occurred before the execution of the settlement agreement.80 The Commission has noted that a complainant who apparently regrets signing the agreement because she feels that its terms are not advantageous to her interests will not be permitted to have those terms set aside simply because she may have made a bad bargain.81 To set aside a seemingly one-sided contract, the Commission requires evidence of the agency’s bad faith in implementing a settlement agreement.82
The Commission has further held that it is the intent of the parties as expressed in the contract, not some unexpressed intention, which controls the contract's construction.83 In ascertaining the intent of the parties with regard to the terms of a settlement agreement, the Commission has generally relied on the “plain meaning” rule.84 This rule states that if the writing appears to be plain and unambiguous on its face, and its meaning must be determined from the four corners of the instrument without resort to extrinsic evidence of any nature.85 The burden is on the party alleging breach to establish that a breach has occurred. For example, in David W. Marthaler v. Department of Justice,86 the Commission found that complainant’s own account in several letters was insufficient to prove that the agency had breached the settlement agreement.
The Commission has made it clear that “the agency has the burden of providing evidence and/or proof to support its final decisions.”87 Notwithstanding its burden of providing evidence to support its decision, an agency may not be required to demonstrate complete compliance with the settlement agreement. For instance, the Commission has held that the failure to satisfy a time frame specified in a settlement agreement does not prevent a finding of substantial compliance of its terms, especially when all required actions were subsequently completed.88 For example, in Angelo A. Sortino v. U.S.Postal Service,89 a delay of two weeks in the transfer of an official letter of request rather than a letter of apology was found to be substantial compliance. In addition, in Steven Centore v. Department of Veterans Affairs,90 the Commission found that the agency’s action, taken a few days after a 60-day time period for compliance, was not a material breach of the settlement agreement.
If a breach is found, the Commission may only order reinstatement of the complaint at the point at which processing ceased or enforcement of the agreement.91 The Commission may find that reinstatement is the more appropriate remedy and if the complaint is reinstated for further processing, then the parties must be returned to the status quo ante at the time that the parties entered into the settlement agreement, which requires that the complainant return any benefits received pursuant to the settlement agreement.92
Allegations of Subsequent Acts of Discrimination
The EEOC’s regulations provide that breach allegations pertaining to subsequent acts of discrimination shall be processed as separate complaints rather than under the breach of settlement agreement provisions.93 An agency’s decision to frame an issue as a breach of settlement agreement may be reviewed by the Commission and be determined to be a new complaint of discrimination. For example, in Ana Brindusescu v. U.S. Postal Service,94 the Commission found that complainant’s allegation of discrimination in favor of a younger male constituted a new complaint, not a claim of settlement breach. Similarly, in Edward Viglione v. Department of Veterans Affairs,95 complainant raised issues concerning a nonselection and denial of transfer request in his breach claim, which the Commission found to be new and separate claims of discrimination.
Awards Where Breach is Found
Compensatory damages are not available for allegations of breach since such allegations do not involve a determination of whether discrimination has occurred but whether a breach of settlement has occurred.96 Although Congress added compensatory damages to federal EEO statutes in order to make those liable for employment discrimination responsible for consequences of their acts,97 the statute did not extend these awards to breach claims. The Commission has found, however, that a complainant may be entitled to attorney’s fees related to pursuing an appeal of a breach claim.98 The Supreme Court held, in Buckhannon Bd. & Care Home, Inc. v. West Virginia Dept of Health and Human Services,99 that parties who obtain judgments on the merits of their claim or court-ordered consent decrees in their favor can receive attorney's fees. Using this rationale, the Commission has held that a complainant who receives some benefit due to a judgment in his or her favor, or in connection with his or her settlement breach claim, is considered a prevailing party under Buchkannon.100
The EEO process can be time consuming and complex for both the lay person and the practitioner. These Special Focus issues of the Winter 2009 and Spring 2009 Digest of EEO Law were designed to provide all participants in the EEO process with a navigation guide and reference sources to help them more clearly understand their rights and responsibilities.
3 The regulations governing the processing of class complaints are set forth at 29 C.F.R. § 1614.204 and are further explained in MD-110, Ch. 8. Class actions are also the subject of an article in the Fall Quarter 2003 issue of the Digest.
6 To determine the adequacy of representation required for class complaint certification, the administrative judge determines whether the class agent and representative can adequately protect the interests of the class. See infra. at 4.
10 29 C.F.R. § 1614.204(a)(2). These requirements are similar to those required in the private sector under the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 23(a) (detailing certification requirements for class action in federal court).
30 AJs also have the authority, in very limited circumstances, to order a complainant to undergo a medical examination on motion of the agency. See EEOC MD-110, Ch. 7-11. The burden of proving that the examination is reasonably necessary is on the agency requesting the examination. Id. This topic is further amplified at EEOC MD-110, Ch. 7-11 to 7-12, including the right of a complainant to object to such a request or order and to file a motion for a protective order.
32 A complainant has a duty to mitigate damages. Failure to do so., e.g., failing to seek other employment if terminated, may result in a reduction in back pay if s/he prevails on the complaint. However, the burden of proving that complainant failed to mitigate damages is on the agency. See 29 C.F.R § 1614.501(d) (agency has burden to prove that complainant failed to mitigate damages).
35 See generally 29 C.F.R. § 1614.401 (identifying when parties may appeal to OFO); EEOC MD-110, Ch. 9 (same). A complainant may not appeal a partial dismissal of a complaint but must wait until final action is taken on the remainder of the complaint. 29 C.F.R. § 1614.107(b).
36 Complainants should file an appeal using Form 573, which may be found at Appendix K of EEOC MD-110. EEOC MD-110 is available on the EEOC’s website at www.eeoc.gov/federal/md110.html. Alternatively, a complainant may write a letter to the Commission expressing a desire to file an appeal. Complainants who choose to write a letter are strongly encouraged to attach a copy of the final action being appealed and include the name of the agency against which the complaint is made; an agency case number; an EEOC hearing number, if applicable; the name and address of the complainant’s representative, if applicable; and the date of the final agency action under appeal.
37 The 30-day period is measured in calendar days from the date of receipt. 29 C.F.R. § 1614.604(a). If the complainant is represented by an attorney, the 30-day filing period begins to run from the date the attorney receives the agency’s final action or decision. 29 C.F.R. § 1614.605(d).
41 If the AJ orders retroactive restoration in a case involving removal, separation, or suspension beyond the date of appeal, the agency shall offer temporary or conditional restoration of the employee to duty status in the position specified, pending the outcome of the appeal. 29 C.F.R. § 1614.505(a)(1).
43 See also, Eugene Bledsoe v. U.S.Postal Service, EEOC Appeal No. 07A30070 (April 29, 2004), req. to recon. den, EEOC Request No. 05A40874 (August 12, 2004), (the agency issued a final order 38 days after receiving the AJ’s decision, but did not submit its appeal within the 40-day time period).
46 Once the agency is notified that an appeal has been filed, it must provide the complaint file, including the hearing transcript and exhibits, if applicable, to the Commission within 30 days. The Commission may impose sanctions against an agency, after proper notice to the parties, for failure to submit the file. Sanctions may include a finding of discrimination. The Commission may draw an adverse inference with respect to documentation that was not submitted, absent good cause shown, on the theory that the agency did not provide the requested documentation because it would have been unfavorable to the agency’s position. See generally 29 C.F.R. § 1614.404; and EEOC MD-110, Ch.9-13.
48 For example, if the agency’s decision dismissed the complaint as raising the same issues contained in a negotiated grievance, the agency should provide a copy of the collective bargaining agreement. Also, if the agency is arguing that complainant had constructive notice of the time period for contacting an EEO Counselor, the agency should include evidence to support its argument.
49 Generally, new evidence will not be considered on appeal unless a party can show that the evidence was not reasonably available prior to or during the hearing. If a party believes that relevant, credible evidence was not allowed into the record, this may be discussed on appeal.
50 Relief ordered in a final Commission decision is mandatory and binding on the agency. Failure to implement ordered relief shall be subject to judicial enforcement. 29 C.F.R. § 1614.502. There are a few specified exceptions to this. When an agency files a request for reconsideration, the agency shall provide conditional relief in cases of removal, separation or suspension beyond the date of the request when there has been an order of retroactive restoration. When an agency requests reconsideration, the agency may delay the payment of any amounts ordered to be paid to the complainant until after the request is resolved.
52 For example, if the previous appellate decision dismissed the appeal as untimely, but on reconsideration the Commission found sufficient justification to deem the appeal timely and then addresses the merits of the appeal for the first time.
53 29 C.F.R. § 1614.407(d). Complainants also may forgo filing appeals with OFO and instead file civil actions in two circumstances: (1) when they have not yet received a final agency decision and filed their formal complaints more than 180 days previously, 29 C.F.R. § 1614.407(b), or (2) when the agency’s final decision was received within 90 days and no appeal to OFO has been filed. 29 C.F.R. § 1614.407(a).
54 29 C.F.R. § 1614.407(c). Civil actions under the Equal Pay Act may be filed at any time in the administrative process, so long as they are filed within 2 years of the alleged discrimination (or 3 years if the alleged violation was willful). 29 C.F.R. § 1614.408.
57 Gerard Thomson is a retired New Mexico state court judge and a senior attorney with EEOC’s Office of Federal Operations’ Special Services Staff, and contributor to The Digest of EEO Law. He is also a mediator and expert in EEO Alternative Dispute Resolution (ADR).
58 29 C.F.R. § 1614.603. In addition, EEOC’s MD-110, Chapter 12, Settlement Authority, is intended to facilitate settlement of federal sector EEO cases at all stages of the complaint process by giving both agencies and their employees detailed information about settlement options.
59 EEOC MD-110, Ch. 12. In Section 118 of the Civil Rights Act of 1991, Congress expressly encouraged the settlement of employment discrimination disputes without litigation “when appropriate and to the extent authorized by law.” See Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071.
60 Alternative dispute resolution (ADR) is a process in which a third party neutral assists disputing parties in reaching an amicable resolution through the use of various techniques that are designed to resolve disputes in a manner that avoids the cost, delay, and unpredictability of the traditional adjudicatory and adversarial processes, such as litigation, hearings, and appeals
64 29 U.S.C. § 626. Where the settlement involves age discrimination claims, Sections (f)(1)(A)-(E) and (f)(2) of OWBPA set forth minimum standards for knowing and voluntary waivers. Under the OWBPA, a settlement agreement is knowing and voluntary when the complainant is given a reasonable period of time to consider the settlement agreement, and the waiver is worded in a reasonably understandable way, specifically refers to rights or claims under the ADEA, and does not waive future rights. In addition, the settlement agreement must provide something of value in exchange for the waiver and must advise the complainant to consult with an attorney before signing the agreement. See 29 C.F.R. § 1625.22 (“Waivers of rights and claims under the ADEA”).
66 Chelson R. McCathen v. Department of Labor, EEOC Appeal No. 0120083766 (February 12, 2009) (extension granted because settlement agreement did not notify complainant of the time limit for alleging breach), request for reconsideration denied, EEOC Request No. 0520090362 (June 30, 2009).
68 Robert A. Ibarra v. Department of Labor, EEOC Appeal No. 0120090357 (February 5, 2009) (agency letter recognized as its final decision dismissing the complaint), request for reconsideration denied, EEOC Request No. 0520090290 (April 21, 2009).
69 29 C.F.R. § 1614.504(b). The complainant may file such an appeal 35 days after he or she has served the agency with the allegations of noncompliance, but must file an appeal within 30 days of his or her receipt of an agency’s determination. The complainant must serve a copy of the appeal on the agency and the agency may submit a response to the Commission within 30 days of receiving notice of the appeal.
70 29 C.F.R. § 1614.606; see Kenneth C. Roberts v. U.S. Postal Service, EEOC Appeal Nos. 0120072576 and 0120083524 (February 12, 2009) (consolidating multiple appeals involving breach of settlement agreements arising from common facts).
77 Id. The Commission also refused to invalidate the settlement due to duress, finding that complainant provided no evidence that she was incapacitated or mentally deficient at the time she signed the NSA. Id.
82 See Walter Todd v. Social Security Administration, EEOC Request No. 05950169 (June 12, 1997); John Wong v. U.S. Postal Service, EEOC Request No. 05931097 (April 29, 1994); Donald D. Johnson v. U.S. Postal Service, EEOC Request No. 05910632 (September 9, 1991).
87 See Donna J. Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993); and see Ira Gens v. Department of Defense (Defense Logistics Agency), EEOC Request No. 05910837 (January 31, 1992).