George Jadue v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GEORGE JADUE, DOCKET NUMBER

Appellant, DE-0752-21-0062-I-2

v.

DEPARTMENT OF HOMELAND DATE: May 29, 2024

SECURITY,

Agency.

Dominick D. Schumacher, Esquire, and James M. Eisenmann, Esquire,

Washington, D.C., for the appellant.

Sung Lee, Esquire, Houston, Texas, for the agency.

Larry Zieff, Esquire, Irving, Texas, for the agency.

Michelle Morton, Esquire, El Paso, Texas, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Chairman Harris issues a separate opinion.

Vice Chairman Limon issues a separate opinion.

ORDER

The appellant has filed a petition for review of the initial decision which

sustained his removal. The two Board members cannot agree on the disposition

of the petition for review. Therefore, the initial decision now becomes the final

decision of the Merit Systems Protection Board in this appeal. Title 5 of the

Code of Federal Regulations, section 1200.3(b) (5 C.F.R. § 1200.3(b)). This

decision shall not be considered as precedent by the Board in any other case.

5 C.F.R. § 1200.3(d).

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NOTICE OF APPEAL RIGHTS 1

You may obtain review of the final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of the final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

1

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

3

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of the final decision—including a disposition of your

discrimination claims—by filing a civil action with an appropriate U.S. district

court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar

days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit

Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in

this case, and your representative receives this decision before you do, then you

must file with the district court no later than 30 calendar days after your

representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

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to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

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disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 2 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

2

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

6

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/

Gina K. Grippando

Clerk of the Board

Washington, D.C.

SEPARATE OPINION OF CATHY A. HARRIS

in

George Jadue v. Department of Homeland Security

MSPB Docket No. DE-0752-21-0062-I-2

On April 14, 2018, the agency removed the appellant based on

11 specifications of lack of candor, all of which concerned information that the

appellant provided or failed to provide about the circumstances under which he

left his previous employment. Jadue v. Department of Homeland Security, MSPB

Docket No. DE-0752-21-0062-I-1, Initial Appeal File (IAF), Tab 11 at 5-11,

Tab 15 at 5-12. The appellant contacted an equal employment opportunity (EEO)

counselor, and then, on August 18, 2018, he filed a timely formal complaint of

discrimination. IAF, Tab 28 at 5-13. On September 4, 2018, the agency accepted

the complaint on the issues of whether the appellant’s removal was based on race,

color, religion, or national origin discrimination, or was in retaliation for prior

EEO activity. Id. at 176-80. On May 22, 2019, the EEO investigator assigned to

the case completed the report of investigation (ROI) and submitted it to the

agency. Id. at 185. Approximately 11 months later, on April 6, 2020, the agency

forwarded a copy of the report to the appellant. IAF, Tab 5 at 5. On October 28,

2020, the agency issued a final agency decision (FAD) finding no discrimination,

and on October 30, 2020, it served a copy of that decision on the appellant. Id.

at 4-8. The appellant timely filed the instant mixed-case appeal. IAF, Tab 1; see

5 C.F.R. § 1201.154(b)(1).

After a hearing, the administrative judge issued an initial decision

sustaining the appellant’s removal. Jadue v. Department of Homeland Security,

MSPB Docket No. DE-0752-21-0062-I-2, Appeal File, Tab 56, Initial Decision.

The appellant has filed a petition for review, contesting among other things the

administrative judge’s ruling on a motion for sanctions that he filed related to the

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agency’s processing of his EEO complaint. Petition for Review (PFR) File,

Tab 3. For the following reasons, I would remand this appeal for the

administrative judge to reconsider the appellant’s motion.

The appellant’s motion for sanctions was based on the agency’s

“unjustified and unexplained” delay in producing a ROI and FAD. IAF, Tab 17.

He argued that the agency was required under 29 C.F.R. § 1614.108(f) to provide

him with a copy of its investigative file within 180 days of the date that he filed

his formal complaint. However, it took the agency in this case 612 days to do so.

Id. at 13. The appellant further argued that the agency was required under 29

C.F.R. § 1614.302(d)(2), to issue a final decision within 45 days of the ROI’s

completion. Id. at 9. However, the agency was again untimely and did not issue

its decision until 162 days after it was due, thereby compounding its previous

delay in issuing the ROI. Id. at 14. The appellant argued that Equal Employment

Opportunity Commission (EEOC) precedent supports a sanction of default

judgment in these circumstances, and he requested that the administrative judge

issue a default judgment, or in the alternative, sanction the agency by excluding

certain evidence or arguments, or making adverse inferences. Id. at 14-24.

The administrative judge denied the appellant’s motion, explaining that,

when an agency fails to issue a FAD in a mixed case within 120 days, the

employee’s remedy is to appeal the matter directly to the Board. IAF, Tab 18

at 1; see 5 U.S.C. § 7702(e)(2); 5 C.F.R. § 1201.154(b)(2). Considering the

absence of Board precedent for sanctions in this situation, he declined “to fashion

an additional remedy.” Id.

The Board’s Authority to Issue Sanctions

The Board’s regulations are broadly written to permit an administrative

judge to “impose sanctions upon the parties to serve the ends of justice.”

5 C.F.R. §1201.43. The regulation provides examples of situations in which an

administrative judge may impose sanctions, including when a party fails to

comply with a Board order, fails to prosecute or defend an appeal, fails to make a

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timely filing, or engages in contumacious conduct or conduct prejudicial to the

administration of justice. Id. Notably, the regulation provides that the sanctions

authority “includes, but is not limited to” the aforementioned examples. Id. An

administrative judge may issue a wide range of sanctions, including dismissal of

the appeal for failure to prosecute, or ruling in favor of the appellant for failure to

defend. 1 5 C.F.R. § 1201.43(b). Possible sanctions for disobeying an

administrative judge’s order include drawing an inference in favor of the

requesting party with regard to the information sought, prohibiting the party

failing to comply with an order from introducing evidence concerning the

information sought or from otherwise relying upon testimony related to that

information, permitting the requesting party to introduce secondary evidence

concerning the information sought, and eliminating from consideration any

appropriate part of the pleadings or other submissions of the party that fails to

comply with the order. 5 C.F.R. § 1201.143(a). For a failure to make a timely

filing, an administrative judge may refuse to consider any motion or other

pleading that is not filed within the applicable time limit. 5 C.F.R.

§ 1201.143(c). Before issuing sanctions, the administrative judge should provide

appropriate prior warning, allow a response to the actual or proposed sanction

when feasible, and document the reasons for any resulting sanction in the record.

5 C.F.R. § 1201.43.

Sanctions in Nonmixed Cases

The EEOC’s regulations require agencies to “[p]rovide for the prompt, fair,

and impartial processing of [discrimination and retaliation] complaints” and to

“develop an impartial and appropriate factual record upon which to make

1

Although the Board lacks authority to issue summary judgments in appeals governed

by 5 U.S.C. § 7701, Crispin v. Department of Commerce, 732 F.2d 919, 922-24 (Fed.

Cir. 1984), the Board’s authority to issue dispositive sanctions has never been

questioned.

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findings” within 180 days. 29 C.F.R. §§ 1614.102(a)(2), 1614.108(b), (e)-(f).

These regulations provide that “[t]he agency shall complete its investigation

within 180 days of the date of filing of an individual complaint.” 29 C.F.R.

§ 1614.108(e). Further, the agency is required to “provide the complainant with a

copy of the investigative file” within that 180-day period. 29 C.F.R.

§ 1614.108(f). The EEOC deems an investigation to be timely and complete

when, among other actions, the agency provides the complainant with a copy of

the investigative file, including a summary of the investigation, within the

applicable time period. EEO Management Directive (MD) 110, ch. V § 5.D

(August 5, 2015).

In nonmixed cases, the EEOC’s Management Directive specifically

contemplates sanctions in the event the ROI is not completed within the

regulatory timeframe:

If after reviewing the file, the Administrative Judge determines

that the investigation is inadequate due to the agency’s failure to

complete the investigation within the time limits . . ., or the agency

has not cooperated in the discovery process . . . the Administrative

Judge may take the following actions:

1. Subject the agency to adverse inference findings in favor of the

complainant;

2. Consider the issues to which the requested information or

testimony pertains to be favorable to the complainant;

3. Exclude other evidence offered by the agency;

4. Permit the complainant to obtain a summary disposition in

his/her favor (that is, default judgment) on some or all of the

issues without a hearing; or

5. Take other action deemed appropriate, including, but not

limited to, requiring the agency to pay any costs incurred by the

complainant in taking depositions or in conducting any other form

of discovery.

....

However, before an Administrative Judge may sanction an agency

for failing to develop an impartial and appropriate factual record or

for not cooperating in the discovery process, the Administrative

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Judge must issue an order to the agency or request the documents,

records, comparative data, statistics, or affidavits. Such order or

request shall make clear that sanctions may be imposed and the type

of sanction that could be imposed for failure to comply with the

order unless the agency can show good cause for that failure. In

appropriate circumstances, the order or request may provide the

agency with an opportunity to take such action as the Administrative

Judge deems necessary to correct the deficiencies in the record

within a specified reasonable period of time. Only on the failure of

the agency to comply with the Administrative Judge’s order or

request and the notice to show cause may the Administrative Judge

impose a sanction or the sanctions identified in the order or request.

EEO MD 110, ch. 7 § III.A (citations omitted). Nevertheless, the EEOC’s

Handbook for Administrative Judges (AJ) states that an administrative judge does

not need to issue a show cause order when the agency has failed to comply with

the EEOC’s regulations and the agency was on notice that its conduct could be

sanctioned. See EEOC AJ Handbook, ch. § 6.II.a. Further, “[a]n Order to Show

Cause is not necessary where a party has filed a motion for specific sanctions and

the non-moving party has had an opportunity to respond.” Id.

The EEOC has found an entry of default judgment in favor of a

complainant to be an appropriate sanction in cases where the agency failed to

investigate the complaint within 180 days in violation of the EEOC’s regulations.

For example, in Reading v. Department of Veterans Affairs, EEOC Appeal

No. 07A40125, 2006 WL 2992420 (Oct. 12, 2006), the EEOC upheld the

administrative judge’s entry of default judgment as an appropriate sanction for a

violation of 29 C.F.R. § 1614.108(e), because the agency did not dispute that an

investigation was completed or even conducted within the 180-day period.

Likewise, in Royal v. Department of Veterans Affairs, EEOC Appeal

No. 0720070045, 2009 WL 3163287 (Sept. 25, 2009), the EEOC upheld an entry

of default judgment against the agency for failure to complete the investigation

within 180 days. The EEOC looked at four factors in determining whether the

sanction of default judgment was warranted: (1) the extent and nature of the

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noncompliance, including the justification presented by the noncomplying party;

(2) the prejudicial effect of the noncompliance on the opposing party; (3) the

consequences resulting from the delay in justice, if any; and (4) the effect on the

integrity of the EEO process. Id.

The EEOC observed as follow:

[G]iven the length of time that the processing of a federal sector

EEO complaint can take, any delays past the time frames in the

regulations can impact the outcome of complainant's claims.

Witnesses may retire or leave the agency, often without notice, or

documents may be misplaced or destroyed (either intentionally or

not) when the responsible party is not notified to maintain the

documents as relevant to an ongoing EEO investigation. The

agency’s assertion that complainant did not suffer any prejudice is

speculative, at best.

Royal, 2009 WL 3163287, at *6. The EEOC continued:

[W]e find that in the case where an agency has not initiated an

investigation that could reasonably be completed within the 180-day

time frame, the fourth factor, the effect on the integrity of the EEO

process, is paramount. Protecting the integrity of the 29 C.F.R. Part

1614 process is central to the Commission’s ability to carry out its

charge of eradicating discrimination in the federal sector. As we

noted in our previous decision, the Commission has the inherent

power to protect its administrative process from abuse by either

party and must insure that agencies, as well as complainants, abide

by its regulations. We have previously issued cases in which we

have affirmed actions taken by [administrative judges] which were

designed to bring to account an agency’s non-compliance with the

regulations or with Orders issued by an [administrative judge].

Id. (emphasis added). The EEOC concluded:

Thus, we find that a sanction in the form of a default judgment is the

appropriate sanction in this case. This decision turns on the fact that

the agency failed to commence an EEO investigation that could

reasonably be completed within the 180-day period following the

filing of the formal complaint, as required by the regulations.

Id.; see also Adkins v. Federal Deposit Insurance Corporation, EEOC Appeal

No. 0720080052, 2012 WL 169813 (Jan. 13, 2012) (finding that the

administrative judge did not abuse his discretion in issuing a decision fully in

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favor of the complainant as a sanction for the agency’s excessive delay in

completing the investigation); Lomax v. Department of Veterans Affairs, EEOC

Appeal No.0720070039, 2007 WL 2981091 (Oct. 2, 2007) (upholding an entry of

default judgment against the agency for its failure to conduct the investigation in

the 180-day period); Montes-Rodriquez v. Department of Agriculture, EEOC

Appeal No. 0120080282, 2012 WL 252677 (Jan. 12, 2012) (entering default

judgment for the complainant where the EEOC ordered an investigation

completed in 150 days and the agency delayed 202 days before initiating the

formal investigation, noting “[o]ur decision to issue a default judgment will

effectively emphasize to the Agency the need to comply with EEOC orders in a

timely manner, as well as ensure that future Agency investigations are adequately

developed for adjudication”); Ricardo K. v Department of Veterans Affairs,

EEOC Appeal No. 2020003751, 2021 WL 5890146 (Nov. 6, 2021) (summarily

affirming default judgment where the ROI was approximately 6 months late).

As noted by the EEOC in Cox v. Social Security Administration:

An agency which treats the deadlines in the hearings process, and the

requirement to produce an adequately developed ROI, as optional,

based on when its staffing and resources may allow it comply, has a

negative effect on the outcome not only of the immediate case, but

also of any other cases under its jurisdiction, as well as those under

the jurisdiction of annuitant AJ. The Commission must [e]nsure that

agencies, as well as complainants, abide by its regulations and the

Orders of its [administrative judges].

EEOC Appeal No. 0720050055, 2009 WL 5223778, *10 (Dec. 24, 2009); see also

Talahongva-Adams v. Department of the Interior, 0120081694, 2010 WL

2253800, *4 (May 28, 2010) (noting “the agency’s delay in completing the

investigation within the 180-day regulatory period is no small non-compliance

matter”). In Montes-Rodriguez, the EEOC found:

Protecting the integrity of the 29 C.F.R. Part 1614 process is central

to the Commission’s ability to carry out its charge of eradicating

discrimination in the federal sector. An agency which treats the time

deadlines for production of an adequately developed investigation as

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optional has a negative effect on the outcome not only of the

immediate case, but also of any other cases under its jurisdiction.

The Commission must insure that all parties abide by its regulations

and orders. Our decision to issue a default judgment will effectively

emphasize to the Agency the need to comply with Commission

orders in a timely manner, as well as ensure that future Agency

investigations are adequately developed for adjudication.

2012 WL 252677, at * 7 (citations omitted).

In Dalton E. v. Department of Housing and Urban Development., EEOC

Appeal No. 0720170038, 2018 WL 6599708 (Nov. 30, 2018), modified on

recons., EEOC Request No. 2019001739 (Sept. 29, 2022), the EEOC found that

sanctions were appropriate where the agency did not learn that a complaint had

been filed and that an ROI had not been produced until about 18 months after the

fact. The formal complaint had been filed as a conflict complaint with a different

agency, and the agency blamed the other agency for the delay in processing.

Dalton E., 2018 WL 65991739, at *3. However, the EEOC rejected this

argument stating, “[t]he regulations found at 29 C.F.R. § 1614.108(b) squarely

place the responsibility for an accurate, complete investigation, completed within

180 days, upon the Agency.” Id. While the EEOC initially granted default

judgment, it revised its sanction on reconsideration finding that “the evidentiary

sanction of excluding the Report serves to remedy the Agency’s conduct.

Further, once the Report is excluded from evidence, the Agency has not met its

burden to offer a legitimate, nondiscriminatory explanation for its actions.

Summary judgment for the Complainant therefore is appropriate.” Dalton E.,

EEOC Request No. 2019001739, 2022 WL 10369699, at *4.

In sum, the EEOC has long issued sanctions for an agency’s failure to issue

ROIs in a timely manner. As such, agencies have been on notice for many years

that they may be subject to sanctions for their failure to comply with the EEOC’s

regulations regarding timely completion of ROIs.

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The Board’s authority to issue sanctions to serve the ends of justice extends to

the situation in which an agency fails to issue a ROI or FAD within the regulatory

deadlines.

The Board’s authority to adjudicate discrimination claims arises from the

“integrated scheme of administrative and judicial review” contained in the Civil

Service Reform Act (CSRA) of 1978. Hess v. U.S. Postal Service, 124 M.S.P.R.

40, ¶ 9 (2016) (citing United States v. Fausto, 484 U.S. 439, 445, 108 S. Ct. 668,

98 L.Ed.2d 830 (1988) (finding that a former Federal employee without Board

appeal rights was not entitled to seek judicial review of his suspension),

superseded by statute on other grounds as stated in Kaplan v. Conyers, 733 F.3d

1148 (Fed. Cir. 2013)); CSRA, Pub. L. No. 95-454, 92 Stat. 1111 (codified as

amended in relevant part at 5 U.S.C. §§ 7701-7703).

The CSRA “provides diverse procedural routes for an employee’s pursuit

of a mixed case” before the Board. Perry v. Merit Systems Protection Board,

582 U.S. 420, 424 (2017). As the Board observed in Hess, a Senate Report on the

CSRA expressed the intent that the Board consider discrimination claims together

with “the employee’s inefficiency or misconduct” as “two sides of the same

question.” S. Rep. No. 95-969, at 53 (1978), as reprinted in 1978 U.S.C.C.A.N.

2723, 2775; Hess, 124 M.S.P.R. 40, ¶ 15. This would permit a “single unified

personnel policy which took into account the requirements of all the various laws

and goals governing Federal personnel management.” Hess, 124 M.S.P.R. 40,

¶ 9. The mixed-case appeal process was intended to streamline adjudication,

avoid “forum shopping and inconsistent decisions,” and ensure that “the Board

and the [EEOC] work together to resolve any differences.” Id.

Similarly, a joint statement by a Senate and House conference committee

expressed the goal to “maintain[ ] the principle of parity between the MSPB and

EEOC” in the mixed-case appeal process. H.R. Rep. No. 95-1717, at 139 (1978)

(Conf. Rep.), as reprinted in 1978 U.S.C.C.A.N. 2860, 2873. Therefore, the

Board’s decision in a mixed-case appeal was to “include . . . any remedial order

10

the [EEOC] . . . may impose under law.” H.R. Rep. No. 95-1717, at 140, as

reprinted in 1978 U.S.C.C.A.N., at 2873. The EEOC was to determine whether

the Board correctly interpreted the laws “over which the EEOC has jurisdiction”

and awarded an appropriate remedy. H.R. Rep. No. 95-1717, at 140, as reprinted

in 1978 U.S.C.C.A.N. at 2873-74; Hess, 124 M.S.P.R. 40, ¶ 16.

Regardless of the route taken, an employee’s only right to an evidentiary

hearing in a mixed case is before the Board. Hess, 124 M.S.P.R. 40, ¶ 18. If the

employee chooses to first file an EEO complaint with the agency in a mixed case,

the agency is required by statute to “resolve such matter within 120 days.”

5 U.S.C. § 7702(a)(2). Thereafter, the employee must file an “appeal within

30 days after the appellant receives the agency resolution or final decision on the

discrimination issue; or (2) If the agency has not resolved the matter or issued a

final decision on the formal complaint within 120 days, the appellant may appeal

the matter directly to the Board at any time after the expiration of 120 calendar

days. Once the agency resolves the matter or issues a final decision on the formal

complaint, an appeal must be filed within 30 days after the appellant receives the

agency resolution or final decision on the discrimination issue.” 5 C.F.R.

§ 1201.154(b).

Although a mixed-case complainant may appeal to the Board prior to the

issuance of a FAD once 120 days have passed, the complainant may wish and has

the right to await the issuance of an ROI and then a FAD. In that case, the

EEOC’s regulations state that the agency has 180 days from the date of the filing

of the formal complaint to issue its ROI. 29 C.F.R. §1614.108(f). However,

given the statutory imperative that the matter be concluded either through

resolution or a FAD at the Agency level within 120 days, 5 U.S.C. § 7702(a)(2),

the ROI and FAD should both be completed well before 180 days to ensure

compliance with the statute.

The Board, in applying substantive discrimination law, defers to the EEOC.

Hess, 124 M.S.P.R. 40 ¶ 10; Southerland v. Department of Defense, 122 M.S.P.R.

11

51, ¶ 12 (2014) (observing that the Board generally defers to the EEOC on

substantive discrimination law). The Board should therefore defer to the EEOC

that agencies should be held to complete ROIs within 180 days. This meets

Congress’s interest that the Board and the EEOC ensure parity in proceedings and

a streamlining of adjudication in the mixed-case appeals process. As a practical

matter, it does not make sense that employees with claims pending before the

EEOC may expect enforcement of this deadline, whereas employees with

mixed-case claims pending before the Board may not. Agencies should not be

incentivized to skip or delay investigations of discrimination complaints just

because the types of personnel actions at issue may differ.

As mentioned above, although employees may choose to appeal to the

Board on a mixed-case claim after only 120 days have passed since the filing of a

formal discrimination complaint, 29 C.F.R. § 1614.302(d)(1), the employee also

has the right to await the issuance of the ROI and a FAD. When the employee

exercises that right, the employee also has the right to expect that the agency will

comply with its regulatory obligations to complete its ROI within at least

180 days and issue a FAD 45 days thereafter. 29 C.F.R. § 1614.108;

1614.302(d)(2). Choosing the immediate route to a Board appeal may be

advantageous for certain individuals; indeed, an employee need not even file a

formal complaint in a mixed case prior to proceeding to a Board appeal. But for

others, they retain the right to timely receive the complete ROI and a FAD. The

FAD may end the matter if the employee is satisfied with the result, obviating the

need for further administrative litigation or civil actions. Putting aside the

strategic, financial, and practical reasons that an employee may choose one route

or the other, the rights are embedded in both statute and regulation.

To ensure the integrity of the process, agencies must be held accountable

when they fail to comply with the deadlines set in the regulations, regardless of

whether the employee’s EEO complaint is mixed. The law disfavors a right

without a remedy, see Peck v. Jenness, 48 U.S. 612, 623 (1849), and a

12

complainant’s ability to file directly with the Board after 120 days is not a

remedy, but a failsafe, see 5 U.S.C. § 7702(e)(2). Moreover, the Board’s refusal

or failure to impose sanctions in concert with the EEOC would have the perverse

effect of incentivizing agencies to prioritize investigations into less serious

personnel actions that are not appealable to the Board. 2

In this case, the appellant exercised his right to await the delivery of both

the ROI and the FAD. The administrative judge denied the appellant’s motion for

sanctions on the grounds that the appellant could have appealed to the Board after

120 days. However, the appellant should not be penalized for exercising his right

to await the ROI and FAD. In so waiting, the appellant did not relinquish his

right to expect that the agency timely delivered both documents, as required by

statute. 5 U.S.C. § 7702(a)(2)(B). I appreciate the administrative judge’s

reluctance to extend sanctions to the matter given the lack of Board precedent on

this issue. However, given the broad nature of the Board’s sanctions regulation,

the EEOC’s precedent on the matter, and the egregious delay by the agency in

this case, I would find that the administrative judge should consider the merits of

the appellant’s motion according to the criteria set forth below.

Criteria for Issuing Sanctions

It would be appropriate for the Board to adopt the Royal factors in

considering a motion for sanctions regarding an agency’s failure to comply with

its obligations in completing a ROI or a FAD in a timely fashion. Specifically, an

administrative judge should consider (1) the extent and nature of the

2

I recognize that the appellant could petition the EEOC to consider the Board’s

decision under 5 U.S.C. § 7702(b) to seek sanctions even if it were the case that the

Board does not possess such authority. However, it would be unnecessarily

cumbersome to force an appellant to do so given the intention to have a single unified

personnel policy and maintain the parity between EEOC and the MSPB in such cases.

See Hess, 124 M.S.P.R. 40, ¶ 15. As such, I would find that the broad language of the

Board’s sanctions regulation encompasses such authority here.

13

noncompliance, including the justification presented by the noncomplying party;

(2) the prejudicial effect of the noncompliance on the opposing party; (3) the

consequences resulting from the delay in justice, if any; and (4) the effect on the

integrity of the EEO process.

I recognize that the process for a Federal sector hearing at the EEOC

differs in some respects from a mixed-case hearing before the Board. For

example, before the Board, witnesses may be subpoenaed, whereas the EEOC

does not currently have subpoena power. Thus, the prejudicial effect due to

witnesses leaving Federal service may be weighed differently. The passage of

time is still a pertinent factor in terms of considering the prejudicial effect caused

by memory loss and the unavailability of information.

So too, I recognize that such motions for sanctions may not be appropriate

in all mixed cases in which a ROI has not been produced at the time that the

appeal is filed before the Board. For example, employees may choose to appeal

directly to the Board without filing an EEO complaint. Johnson v. Department of

Justice, 30 M.S.P.R. 141, 142 (1986); see 5 U.S.C. § 7702(a). In those instances,

a ROI or a FAD would not be expected to be issued. Or, in other instances,

employees may choose to file their appeals after 120 days have passed since the

filing of the formal complaint. In those cases, the agency’s deadline to complete

the ROI would not have yet tolled.

I agree with the EEOC that the last Royal factor, the effect on the integrity

of the EEO process, is the most important. Equal opportunity lies at the core of

the merit systems. Although the EEOC is the primary administrator of Federal

sector antidiscrimination laws, the process of enforcing those laws depends on the

active cooperation of every Federal agency. It is therefore essential that public

employees and the public at large be confident that individual agencies share this

commitment. As the EEOC stated in Adkins, 2012 WL 169813, at *11, “When

federal agencies fail to abide by the most basic and fundamental tenets enshrined

in the EEOC’s regulations, the public’s confidence in the integrity and soundness

14

of the EEO process erodes.” As such, we reiterate that the Board will remain

stalwart in ensuring adherence to merit system principles, including

antidiscrimination.

I would also have the administrative judge consider the Board’s precedent

on issuing sanctions, including that sanctions may be imposed only insofar as

warranted to preserve the ends of justice. 3 Montee v. Department of Justice,

84 M.S.P.R. 1, ¶ 12 (1999). Good faith efforts falling short of full compliance

with an order are to be considered in determining whether a sanction is

appropriate. See Crespo v. U.S. Postal Service, 53 M.S.P.R. 125, 130-31 (1992);

see also Macon v. Department of the Air Force, 46 M.S.P.R. 410, 415 (1990)

(explaining that, although the appellant did not show good cause for his complete

failure to comply with certain of the administrative judge’s orders, the fact that

he had made “some effort” to comply with the orders was a reason not to impose

sanctions).

Conclusion

In conclusion, I would remand this appeal for the administrative judge to

reconsider the appellant’s motion for sanctions and allow the parties to submit

updated briefing and argument on whether sanctions are appropriate, taking into

account the Royal factors and the Board’s criteria for issuing sanctions, as well as

the current posture of the case, including that the parties completed discovery and

a hearing. Were the administrative judge to determine that sanctions are

appropriate, he should consider in the first instance what particular sanction is

3

Sanctions are normally levied for a party’s actions or inactions after the appeal is

filed. However, levying sanctions for some types of pre-litigation conduct, such as

spoliation of evidence or failure to timely process an EEO complaint, would

undoubtedly be appropriate under some circumstances.

15

best suited for the matter. Although a ruling in favor of the appellant may be

appropriate in some circumstances, a lesser sanction may also be imposed.

/s/

Cathy A. Harris

Chairman

SEPARATE OPINION OF RAYMOND A. LIMON

in

George Jadue v. Department of Homeland Security

MSPB Docket No. DE-0752-21-0062-I-2

While working in a prior job with the U.S. State Department, the appellant

had his security clearance suspended based on his failure to report in his

background investigation forms that he was a dual citizen and held a passport

from a country other than the United States. As a result, he was indicted in

Federal court on two charges of making false statements and one charge of

obstruction of justice. The appellant then entered into an agreement with the U.S.

Attorney’s Office in which he agreed to resign from the State Department in

exchange for the dismissal of the criminal charges against him.

The appellant thereafter was not fully candid regarding those events when

completing his Department of Homeland Security application and background

forms, as well as during his response to agency interrogatories and interviews.

The agency therefore removed him from his Criminal Investigator position based

on a charge of lack of candor supported by 11 specifications.

On appeal after the agency issued a final decision following the appellant’s

equal employment opportunity (EEO) complaint, the Board’s administrative

judge sustained the charge (4 of the 11 specifications), found the appellant’s

affirmative defenses unproven, and affirmed the removal. The administrative

judge also denied the appellant’s motion for sanctions against the agency. The

appellant had requested sanctions in the form of a default judgment in his favor,

the exclusion of certain evidence or arguments, or an adverse inference, based on

the agency’s delayed processing of his EEO complaint before the Board appeal

was filed, including delays in providing a copy of its investigative file and

issuing a final decision. I would affirm the initial decision as modified, to clarify

2

the appropriate standards for the appellant’s discrimination and retaliation

affirmative defenses, and find no abuse of discretion by the administrative judge

in denying sanctions.

Regarding the sanctions question, I firmly believe that Federal agencies

must comply with the regulations issued by the Equal Employment Opportunity

Commission (EEOC) in terms of providing for the prompt, fair, and impartial

processing of discrimination and retaliation complaints. Such timely compliance

is essential to the integrity of the EEO process and the mission of eradicating

discrimination and retaliation in the Federal sector, and lessens the risk that a

processing delay will impact the outcome of a complainant’s claim through, for

example, the retirement or departure of witnesses or the loss or destruction of

documents. The agency’s failure to comply with the EEOC’s regulations in this

case is reprehensible. Nevertheless, I also believe that the Board does not

currently have the authority to impose sanctions based on such conduct, and that

any remedy in that regard must be sought before the EEOC.

Under 5 U.S.C. § 7702(a)(1), the Board “shall . . . decide both the issue of

discrimination and the appealable action in accordance with the Board’s appellate

procedures under section 7701 of this title and this section.” There is nothing

within sections 7701-7702 that permits the Board to “decide” an issue of

discrimination and the appealable action by means of a default judgment sanction,

for example, when an agency does not follow the EEOC’s regulations before an

appeal is filed. In fact, Congress spoke to the manner in which agency processing

delays would be addressed when it indicated that an agency’s failure to issue a

judicially reviewable action in a mixed case within 120 days entitles an employee

to appeal the matter to the Board. 5 U.S.C. § 7702(e)(2). Congress could have

set forth other remedies for an employee in that situation but did not. The

EEOC’s regulations similarly provide for a remedy when an agency does not

provide a copy of its investigative file within 180 days from the filing of the

complaint:

3

If the agency does not send the notice required in paragraph (f) of

this section within the applicable time limits, it shall, within those

same time limits, issue a written notice to the complainant informing

the complainant that it has been unable to complete its investigation

within the time limits required by § 1614.108(f) and estimating a

date by which the investigation will be completed. Further, the

notice must explain that if the complainant does not want to wait

until the agency completes the investigation, he or she may request a

hearing in accordance with paragraph (h) of this section, or file a

civil action in an appropriate United States District Court in

accordance with § 1614.407(b). Such notice shall contain

information about the hearing procedures.

29 C.F.R. § 1614.108(g); 29 C.F.R. § 1614.302(d) (providing that the procedures

set forth in “subpart A” shall generally govern the processing of mixed-case

complaints). I further note that, if an appellant in a mixed case is unhappy with

the Board’s ruling on a motion for sanctions for an agency’s failure to comply

with an EEOC regulation, the Board’s final decision may be appealed to the

EEOC, where the sanctions issue can be addressed. See Justin R. v. Equal

Employment Opportunity Commission, EEOC Doc. No. 0120162687, 2019 WL

7170730 (Nov. 27, 2019) (responding to the complainant’s motion for sanctions

based on an agency’s failure to develop an impartial and appropriate factual

record under 29 C.F.R. § 1614.108(b) by noting that, if the Board does not

address the motion to his satisfaction, “then Complainant may raise it with the

Commission should he file a petition for consideration by the EEOC from the

MSPB’s decision”).

Moreover, there appears to be no express statutory grant of authority for

the Board to impose a sanction. Instead, 5 U.S.C. § 7701(k) and 5 U.S.C. §

1204(h) generally provide that the Board may prescribe such regulations to carry

out the purpose of section 7701 and perform the Board’s functions. Pursuant to

those authorities, the Board promulgated 5 C.F.R. § 1201.43. Any potential basis

for a sanction does not, in my view, fall within the authority set forth in that

regulation.

4

Section 1201.43 provides as follows:

The judge may impose sanctions upon the parties as necessary to

serve the ends of justice. This authority covers, but is not limited to,

the circumstances set forth in paragraphs (a), (b), (c), (d), and (e) of

this section. Before imposing a sanction, the judge shall provide

appropriate prior warning, allow a response to the actual or proposed

sanction when feasible, and document the reasons for any resulting

sanction in the record.

The examples in paragraphs (a)-(e) all involve actions taken by a party

while their appeal is pending before the Board, including failure to comply with

an order, failure to prosecute or defend the appeal, failure to make a timely filing,

and engaging in contumacious conduct. This is consistent with the Board’s

authority under 5 U.S.C. § 1204(a)(2) to order any Federal agency or employee to

comply with any order or decision issued by the Board under the authority

granted by statute for the Board to hear and adjudicate cases within its

jurisdiction, and to enforce compliance with any such order by, for example,

threatening to impose a sanction. Although section 1201.43 indicates that the

sanction authority is not limited to the circumstances described, a general

principle of statutory or regulatory interpretation, ejusdem generis, is that general

or collective words or phrases that follow the enumeration of specific things will

be held to refer to, and interpreted in light of, things of the same kind and with

common attributes as those shared by the specified items. See, e.g., Bissonnette

v. LePage Bakeries Park St., LLC., 601 U.S. 246, 255 (2024) (holding that

specific terms in a statute limit a residual clause, and that a residual clause does

not “swallow[] up” a statute’s narrower terms); King v. Department of the Air

Force, 122 M.S.P.R. 531, ¶ 7 n.4 (2015). Thus, I interpret section 1201.43 as

authorizing sanctions for behavior by a party that occurs after a Board appeal has

been filed, not behavior that predates the Board appeal. In keeping with this

interpretation, the regulation contemplates the administrative judge providing an

“appropriate prior warning” before imposing a sanction, thereby implying that the

warning is intended to persuade the party to change the improper behavior or face

5

the possibility of a sanction. A Board-issued warning provided to an agency for a

delay in providing a copy of an investigative file or issuing a final decision on an

EEO complaint would, by contrast, be essentially meaningless, as it would not

likely induce the agency to complete an investigation or issue a final decision

once the Board appeal had already been filed. See 29 C.F.R. § 1614.107(a)(4)

(providing that an agency shall dismiss a complaint when the complainant has

raised the matter in a mixed-case appeal to the Board); 29 C.F.R. §

1614.302(c)(1).

This interpretation is also consistent with the Board’s intent when it

promulgated the sanction regulation in 1979. At that time, section 1201.43

similarly provided that “[t]he presiding official may impose sanctions upon the

parties as necessary to serve the ends of justice, including but not limited to the

instances set forth in paragraphs (a), (b), and (c) of this section,” which included

a failure to comply with an order, failure to prosecute or defend, and failure to

make a timely filing. 44 Fed. Reg. 38,342, 38,353 (June 29, 1979). In explaining

the amendments to the proposed rule, the Board noted that the section had been

revised “to make clear that these sanctions will not be imposed if the parties can

demonstrate good cause for their failure to take an action.” Id. at 38,345. The

Board indicated that, while it was sympathetic to the problems that may “arise in

the course of a proceeding,” delay “in the proceedings” that harms other parties

will not be tolerated, and in order to avoid sanctions, all parties must meet the

burden of moving forward in a manner “consistent with these regulations.” This

commentary shows that it is behavior by the parties in the course of the

proceedings before the Board that may warrant the imposition of sanctions, and

that such behavior must be inconsistent with “these regulations,” i.e., the Board’s

regulations, not EEOC regulations.

Interpreting section 1201.43 as permitting the Board to impose sanctions

for actions that pre-date the Board appeal raises similar concerns to those

expressed by the court in King v. Jerome, 42 F.3d 1371, 1373, 1375-76 (Fed. Cir.

6

1994). In that case, the Board held that an agency’s undue disruption

determination that was made after the issuance of an interim relief order was

subject to a “bad faith” review by the Board. The court disagreed and reasoned

as follows:

The board argues that these remedies [i.e., alleging a prohibited

personnel practice before the Office of Special Counsel or filing a

discrimination complaint based on an allegedly retaliatory undue

disruption determination] do not give the employee as effective and

efficient relief as its review does. It argues that “review of agency

undue disruption determinations is the most effective and efficient

means of ensuring that agencies do not take retaliatory actions

against employees in the guise of providing interim relief,” and that

it would be “absurd to require the time and expense of an additional

administrative action to protect an employee from abuse in the

interim relief process when the Board can effectively protect the

employee at little or no marginal cost.” The answer to this argument

is that the board does not have the authority to determine the most

efficient and effective means to prevent agency retaliation – it has

only as much authority as Congress chooses to give it. Cowan, 710

F.2d at 805; Van Werry, 995 F.2d at 1050. Congress did not grant it

the authority to review an agency’s determination made under

section 7710(b)(2), and it is not for the board to supplant the

remedies Congress expressly provided or create new remedies which

it believes Congress overlooked. See United States v. Fausto, 484

U.S. 439, 108 S. Ct. 668, 98 L.Ed.2d 830 (1988); Carter v. Gibbs,

909 F.2d 1452 (Fed. Cir. 1990).

Id. at 1375-76.

Although it could be argued that it would be more effective and efficient

for the Board to have the same sanction authority as the EEOC when an agency

does not comply with the EEOC’s regulations before an appeal is filed, Congress

did not grant it that authority, and it is not for the Board to create new remedies

that it believes Congress overlooked. Instead, Congress chose to permit

employees in those situations to appeal the matter to the Board. As set forth

above, the Board’s regulations, in their present form, do not contemplate such

sanctions.

7

In sum, while I agree that agencies must comply with the EEOC’s

regulations by completing investigations and issuing final decisions within the

EEOC’s regulatory timeframe, I am not convinced that a remedy for such a

violation, which is not an independently appealable action before the Board, lies

with the Board. An administrative judge’s ruling on sanctions is subject to an

abuse of discretion standard, see Social Security Administration v. Levinson,

2023 MSPB 20, ¶ 53, and in light of the foregoing, I see no abuse of discretion

here.

/s/

Raymond A. Limon

Vice Chairman