EEOC judge wrongly assessed sanctions against federal agency. Complainant, a federal employee, filed an Equal Employment Opportunity (EEO) complaint alleging discrimination on the basis of race (Asian), sex (female), age (54), and reprisal. Specifically, she alleged the discrimination was a performance appraisal rating of 2, “minimally successful”. Following the initial investigation, the Complainant requested a hearing. The EEOC Administrative Judge (AJ) issued Summary Judgment (a decision without a hearing) for the Agency finding no discrimination. However, the AJ issued sanctions to the Agency for its legal counsel’s actions during the investigations fact-finding conference, and for exceeding by about a month and a week the 180-day regulatory deadline to completely the investigation. The Agency filed an appeal simultaneously with its final order in which they accepted the finding of no discrimination but rejected the finding that there was a conflict of interest and rejected all sanctions.

On appeal, the EEOC’s Office of Federal Operations (OFO) agreed that given the facts of the case a reasonable fact finder could not find that Complainant was subjected to discrimination on any basis. The OFO further held that the AJ should not have sanctioned the Agency for holding a fact-finding conference where legal counsel for the Agency and Complainant were allowed to ask follow-up questions after the EEO Investigator questioned witnesses. The language in the EEO guidelines states the investigator is permitted to be a “presiding official at a fact-finding conference” and such language anticipates that parties may ask questions. Further, the transcript showed that the Agency counsel did not direct, control, interfere with, or overrule the investigator. Similarly, the OFO held that without other sanctionable conduct, the length of delay in completing the investigation did not warrant sanctions. As a result the OFO affirmed the Agency’s final decision in full.

Kylee C. v. Dep’t of the Army, EEOC Appeal No. 2020001154 (Apr. 22, 2021)

Kirk J. Angel represents federal employees in EEO matters as well as hearings before the MSPB and EEOC.