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Digest of EEO Law, Volume XI, No. 6

COMMISSION HIGHLIGHTS

I

PROSPECTIVE WAIVER IS NULL AND VOID

Vigil v. Department of the Army, EEOC Request No. 05960521 (June 22, 1998).

The agency filed a Request to Reconsider (RTR) from the Commission's decision on appeal finding that appellant had been retaliated against. In the RTR the agency argued for the first time that the appellant, in a separate, unrelated lawsuit, had signed a settlement agreement which by its terms explicitly released the agency from all pending and future claims by appellant. Because the EEO complaint underlying the Commission's finding of retaliation was pending when the parties entered into the agreement, the Commission decided that the complaint would be resolved by the terms of the settlement agreement, and vacated its earlier decision. However, the Commission expressed concern about language in the agreement releasing the agency from future claims. The language covered claims which the appellant "might have or might claim to have . . . in the future." The Commission stated that it has long held that a complainant may validly waive only those claims arising from acts or practices which predate a settlement agreement. The Commission stated that a waiver of prospective Title VII rights is invalid as violative of public policy, and informed the agency that the language in the agreement covering future claims is null and void. The Commission also cautioned the agency that its use of a prospective waiver may be considered a separate act of retaliation, citing to April 10, 1997 EEOC Enforcement Guidance on non-waivable employee rights.

II

AGENCY FAILED TO CONDUCT DIRECT THREAT ANALYSIS

Trusty v. Department of Veterans Affairs, EEOC Appeal No. 01956653 (June 5, 1998).

Appellant was working as an Encephalograph (EEG) Technician at an agency medical center when he filed an EEO complaint alleging age and disability (major depression) discrimination. His allegations included claims that the agency discriminatorily failed to return him to full duty and attempted to terminate him. Following an incident at work in February 1993, appellant left work, and by letter informed the director of the medical center that he was very depressed. In early April 1993, appellant returned to work. His attending psychiatrist wrote the agency that appellant was not a threat to patients and that he could return to his EEG Technician position, but the agency did not return him to full duty. Instead, he was assigned to assist a secretary with clerical duties. The agency thereafter referred appellant to a psychologist for a fitness for duty examination, which resulted in an evaluation that appellant's memory ability was moderately impaired. An agency physician thereafter determined that appellant should not have contact with patients because of possible impaired judgment. In neither of the letters sent to the agency did appellant's psychiatrist mention memory impairment, brain dysfunction, or dementia. Appellant was not permitted to return to full duty as an EEG Technician until November 1994. The agency also denied his step increase in February 1994 based on its perception that appellant could not perform the duties of his position, and repeatedly asked appellant to consider early retirement for medical reasons.

The agency issued a final decision finding no discrimination, which appellant appealed to the Commission. The Commission found that the agency failed to show that appellant posed a significant risk of substantial harm to patients, a showing that is necessary before an individual can be excluded from an employment opportunity. The Commission reasoned that the agency's initial finding regarding the safety of patients was not explained in any detail, nor did the agency include an individual assessment of appellant's ability to perform his duties, as required by 29 C.F.R. §1630.2(r). In addition, the Commission noted that the agency psychologist's report was unaccompanied by objective, factual evidence of the nature and effect of the suspected disability. This report was contrasted with the contradicting opinion of appellant's attending psychiatrist. The Commission reversed the agency's finding of no discrimination on the basis of disability. As stated above, appellant had been returned to full duty in November 1994, so the agency was not ordered to do so as part of the ordered remedy. The Commission ordered the agency to grant appellant a retroactive step increase, to expunge specified information from appellant's personnel records, to award him back pay, and to conduct training for management staff at the facility where the discrimination took place. The agency was also ordered to determine appellant's entitlement to any compensatory damages.

III

ALLEGATION PERTAINING TO A SETTLEMENT OFFER WAS NOT ACTIONABLE

Millea v. Department of Veterans Affairs, EEOC Request No. 05980235 (May 21, 1998).

Appellant filed a complaint of reprisal. He alleged that the agency retaliated against him by offering him a settlement agreement for another of his complaints. The agency dismissed his complaint for failure to state a claim, on the grounds that a claim of discrimination could not be grounded in a claim regarding a settlement agreement. The Commission affirmed the agency's dismissal on appeal. In its decision on the appellant's request to reconsider, the Commission agreed with the agency's determination that appellant failed to state a claim. The Commission in support cited to its decision in Montague v. Veterans Administration, EEOC Request No. 05920321 (May 7, 1992), which ruled that an allegation pertaining to a settlement offer does not state a cognizable claim. [Ed. Note: See also Green v. United States Postal Service, EEOC Request No. 05980207 (June 25, 1998) (agency's withdrawal of an offer made in settlement not actionable).]

IV

AGENCY TOOK APPROPRIATE ACTION TO STOP SEXUAL HARASSMENT

Barlow v. Department of the Navy, EEOC Appeal No. 01971585 (June 11, 1998).

A coworker sent appellant three letters proposing a sexual relationship and pressing her for a response. Because the two had a long-standing work relationship, appellant told the coworker only that the letters upset her. Upon subsequently receiving two e-mail messages from the coworker, appellant informed her supervisor of the contacts. He immediately granted her request that she not work with the coworker. Appellant, along with an EEO Specialist and an EEO Counselor, then met with the Director of appellant's employing office. The Director immediately notified an EEO official and the Executive Director, and met the following day with the coworker. He told the coworker that his contacts were unwelcome and should cease immediately. He also admonished him and warned the coworker that he would be subject to severe action if he did not comply. The coworker stated that he would comply. The Director thereafter made a point of inquiring about whether the unwelcome conduct resumed. There were no further incidents. The coworker later retired.

Appellant filed a complaint alleging sexual harassment, including an allegation that the agency failed to take sufficiently severe action against the coworker. The agency ultimately issued a final decision finding no discrimination, and appellant filed this appeal. Her arguments included contentions that the coworker should have been removed from employment instead of receiving only a verbal admonishment, and that the agency's failure to take severe enough action demonstrated its insensitivity to sexual harassment. The Commission decided that the agency took immediate, appropriate action as required by EEOC regulations. The Commission reaffirmed its definition of the agency's obligation as being "prompt remedial action reasonably calculated to end the harassment." In this case, stated the Commission, the agency promptly took action which in fact did stop the harassment. The agency was not obligated to take the specific actions demanded by appellant, stated the Commission. The Commission affirmed the final agency decision.

V

AGENCY BREACHED COMPENSATORY DAMAGES TERM IN SETTLEMENT AGREEMENT

Lam v. Department of Agriculture, EEOC Appeal No. 01961589 (June 11, 1998).

The agency and appellant settled appellant's complaint of race (Asian) discrimination and reprisal. One term of the settlement agreement provided that appellant should submit her claim for lump sum compensatory damages and provided further that "should complainant not reach a settlement regarding such compensatory damages, the case will be reopened to its current procedural posture." Appellant submitted a claim for $65,000. The agency did not negotiate in response, but rather issued a final decision finding that appellant was not entitled to any compensatory damages because she showed no causal relationship between her claimed damages and the alleged discrimination. Appellant appealed.

The Commission found that the agency failed to comply with the agreement, as it did not attempt to reach a settlement regarding compensatory damages, and also failed to reinstate the complaint. The Commission reasoned that the agency's actions placed the question of compensatory damages before it, and decided to exercise its jurisdiction to rule on the matter and to order compliance with the term of the settlement agreement. An amount of $18,000 was awarded for nonpecuniary compensatory damages. In addition, the Commission ordered the agency to comply with other terms of the settlement agreement.