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EEOC finds error of law requires reconsideration of federal agency appeal. Complainant, a federal employee, filed an Equal Employment Opportunity (EEO) complaint alleging discrimination on the basis of sex, disability, age, and reprisal for prior EEO activity. Specifically, she alleged she was constructively discharged from her position when she resigned from the Agency in lieu of termination. The Agency accepted the complaint and issued a letter authorizing an investigation of the claim, then alerted the Complainant that she could request a hearing or an immediate final order. Complainant requested a hearing and submitted a motion asking the Administrative Judge (AJ) to issue default judgment in her favor as a sanction for the Agency’s “failure to conduct an adequate EEO investigation and its failure to complete the EEO investigation as mandated within the regulatory timeframe.” The AJ granted Complainant’s motion, not persuaded by the Agency’s various reasons for the delay or its legal arguments against the imposition of a sanction, and found Complainant had been subjected to constructive discharge. The Agency issued its final order and simultaneously filed an appeal challenging the AJ’s default judgment and order of damages. Complainant filed a cross-appeal challenging portions of the AJ’s decision and orders.

During the appeal the EEOC’s Office of Federal Operations (OFO) held that the AJ did not exhibit undue bias against Complainant and there was no abuse of discretion when he sanctioned the Agency. The OFO also held that Complainant was entitled to the full range of applicable personal relief associated with the constructive discharge. The Agency filed a request for reconsideration which was denied for failure to meet the criteria for reconsideration.

Following the appeal, the EEOC exercised its discretion to reconsider the decision because it identified and error of law in the appellate decision and reopened the case on its own motion. In the reconsideration, the OFO held that the AJ erred when, in the absence of an order, he sanctioned the Agency for its failure to complete the EEO investigation in a timely manner by issuing a default judgment in favor of the Complainant. The OFO vacated the AJ’s default judgment and remanded the case back to the Agency to reopen Complainant’s hearing request.

Miguelina S. v. Dep’t of Justice, EEOC Request No. 2019002953 (Jan. 27, 2020) https://www.eeoc.gov/sites/default/files/decisions/2020_08_10/2019002953.pdf

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