Volume XII, No. 2
April - June 2000
The Digest of EEO Law is a quarterly publication of EEOC's Office of Federal Operations (OFO).
Carlton M. Hadden, Director, OFO
Donald Names, Director, OFO's Special Services Staff
Editor: Joan Hannan
Writers: Dann Determan, Lori Grant, Navarro Pulley
Available in accessible formats for persons with disabilities. The Digest is now available online through EEOC's homepage at www.eeoc.gov. If you wish to receive a copy in print, you must send a request to Joan Hannan, EEOC, Office of Federal Operations, 1801 L Street, N.W., Washington, D.C. 20507; or by e-mail to firstname.lastname@example.org.
Abuse of process. The Commission found that complainant used the EEO process to make a concerted attempt to retaliate against agency officials, not to obtain relief from discrimination. She contacted an EEO Counselor every thirty days for four years. Held: abuse of process. Reisinger v. United States Postal Service, EEOC Appeal No. 01973537 (February 14, 2000).
States a claim. Complainant alleged that because of his disability and in retaliation for protected EEO activity, the agency requested medical examinations and released personal information without his permission. The claim of discriminatory violation of confidentiality constitutes a harm to a term, condition, or privilege of employment. Menchaca v. United States Postal Service, EEOC Appeal No. 01992854 (February 15, 2000).
Hostile working environment. Complainant alleged that she was exposed to sexually harassing language and conduct by coworkers for four years. She also testified to the presence of pornographic pictures and paraphernalia in the workplace, and gave examples of sexual terms used by coworkers when they discussed women. The Commission rejected the agency's contentions that complainant failed to offer specific examples of harassing conduct. Instead, the appeal decision adopted the Administrative Judge's decision, finding that the acts complained of were serious, continuous, and pervasive and resulting in an unlawful hostile work environment. Hackman v. United States Postal Service, EEOC Appeal No. 01971882 (March 16, 2000).
Improper use of direct threat analysis. The U.S. Postal Service in disqualifying complainant from reinstatement merely relied on her past record and found her to be a "moderate risk," rather than making an individualized assessment of her current condition. It was unclear, stated the Commission, that the moderate risk rose to the level of "high probability of substantial harm" (direct threat). Since the U.S. Postal Service did not make a showing of direct threat, as is required when using the possibility of future injury as a qualification standard, the Commission ruled that the agency violated the Rehabilitation Act in refusing to reinstate complainant. Selix v. United States Postal Service, EEOC Appeal No. 01970153 (March 16, 2000).
Direct evidence of age discrimination. Statements such as "too old" were made in connection with the decision of the Department of Commerce not to promote complainant. The Commission found age discrimination. Zarbo v. Department of Commerce, EEOC Appeal No. 01975291 (January 27, 2000).
Reprisal. Supervisor called complainant at home regarding his EEO activity. The Commission found that the supervisor's action violated the letter and spirit of the EEO regulations and evidenced interference with the EEO process. It served to have a "potentially chilling effect" on the filing of a complaint, stated the Commission. In the decision, the Commission cautioned agencies to insure that supervisors and managers perform in a manner that assures "a continuing affirmative application and vigorous enforcement" of EEO. Anderson v. Department of the Air Force, EEOC Appeal No. 01983069 (February 16, 2000).
No side effects from medication. Complainant took medication for gastroesophegeal reflux disease. Absent from the record was any documentary or medical evidence showing that the medication caused side effects while complainant was at work. Held: petitioner did not establish that her condition constituted a disability under the Rehabilitation Act. Bond v. Department of Energy, EEOC Petition No. 03990132 (March 28, 2000).
Permissible request for updated medical information. Complainant alleged that she was discriminated against based on disability, reprisal, and other bases, when the U.S. Postal Service required her to provide medical documentation before allowing her to return to work. She had provided medical information nearly two years earlier when the agency placed her in a limited duty position, and the agency requested an update of this information. The Commission noted that the agency's request was not improper prior to placing complainant in a light duty position, where the agency record of medical restrictions was nearly two years old and as such did not accurately reflect her current limitations. Ward v. United States Postal Service, EEOC Appeal No. 01985961 (March 6, 2000).
Disabled veteran: Distinction between disabled veteran status and disability. The Commission stated that complainant's mere status as a disabled veteran was not dispositive as to whether he was disabled within the meaning of the Rehabilitation Act. There was no evidence to show that complainant had a condition which rose to the level of a disability under the regulations. Cabral v. General Services Administration, EEOC Petition No. 03990131 (February 17, 2000).
Appropriate health care professional. The Department of the Navy was incorrect in telling complainant that her accommodation request must be supported by a medical doctor rather than the Licensed Clinical Social Worker (LCSW) relied on by complainant. The Commission pointed out that under EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, a LCSW can be an appropriate health care professional to provide documentation, depending on the case. Morgan v. Navy, EEOC Appeal No. 01972175 (February 3, 2000).
Equipment is a required reasonable accommodation only when related to a particular job. Complainant alleged disability discrimination in the agency's failure to make a wheelchair available for her use at her car and just inside the building door. The Department of Veterans Affairs made some wheelchairs available generally to employees and patients at the Medical Center. Complainant used a wheelchair to move between the parking lot and her limited duty assignment, and to go to and from the cafeteria. Because she was not required to move from place to place in the performance of her duties, the Commission ruled that the agency had no legal obligation to provide complainant with a wheelchair. Cass v. Department of Veterans Affairs, EEOC Appeal No. 01982551 (February 17, 2000).
Employer not aware of alleged coworker harassment. Complainant brought an allegation of harassment by a coworker to the attention of an EEO Counselor, but did not notify Navy management of the harassment. Held: no liability because with respect to sexual harassment by a coworker, as opposed to a supervisor, management is not obligated to take prompt remedial action until it becomes aware of, or reasonably should have been aware of, the harassment. Morgan v. Navy, EEOC Appeal No. 01972175 (February 3, 2000).
Sanction for delayed investigation. The Department of Education delayed investigating a complaint for over five years, despite an Administrative Judge's explicit remand for investigation and despite the complainant's continuous attempts to obtain her investigation. Complainant appealed, contending that the conduct of the Department of Education was tantamount to a final decision. The Commission found a violation of 29 C.F.R. 1614.108(e), and also found that the agency had failed to show good cause to avoid a sanction for the violation. The Commission sanctioned the agency by issuing a decision partially in favor of complainant. The agency was ordered to award the complainant back pay and benefits, and to consider an award of compensatory damages. DaCosta v. Department of Education, EEOC Appeal No. 01995992 (February 25, 2000).
Adverse inference. Upon the failure of the Department of the Army to comply with the Commission's previous order, the Commission applied an adverse inference against the agency and found that it was in breach of a settlement agreement entered into by the parties. Bush v. Department of the Army, EEOC Appeal No. 01960709 (February 1, 2000).
Agency may not deduct disability retirement benefits payments from back pay award. In an earlier decision, the Commission ruled that complainant was a victim of disability discrimination, and ordered reinstatement and back pay. The Order also directed the U.S. Postal Service not to deduct from the back pay award any disability retirement benefits paid to complainant before his reinstatement. The agency filed this petition for clarification of the disability retirement benefits directive. Citing to EEOC policy guidance, the Commission explained that it is not equitable for an employer to be permitted to recoup these pension payments. The decision also discussed Arneson v. Social Security Administration, 128 F. 3d 1243 (8th Cir. 1997), in which the court applied the common law collateral source rule. Savage v. United States Postal Service, EEOC Petition No. 04990044 (March 28, 2000).
Effect on back pay of OWCP benefits. The Department of Defense rejected the EEOC's order for an award of back pay for those periods in which petitioner was on enforced leave and getting benefits from the Office of Worker's Compensation, and complainant filed a petition for enforcement. Held: complainant is entitled to back pay for those periods, but the amount paid by the Office of Worker's Compensation for lost wages must be subtracted from the back pay award. Sands v. Department of Defense, EEOC Petition No. 04990001 (February 25, 2000).
Priority consideration. Interpreted as meaning that a complainant must be considered before any formal action to recruit for the vacancy, and must be given bona fide consideration on his/her own merit, without competition with other potential candidates. Bush v. Department of the Army, EEOC Appeal No. 01960709 (February 1, 2000).
Proof of prima facie case. Complainant alleged race and national origin discrimination regarding leave use and procedures. Although he provided no comparative evidence to establish disparate treatment, the Commission drew an inference of discrimination based on other evidence. The Commission considered statements in the affidavit of a retired supervisor, and numerous inconsistencies in the manner in which the agency applied its leave policies to complainant. Hayashida v. Department of Transportation (Federal Aviation Administration), EEOC Appeal No. 01970075 (February 16, 2000).
No proof of prima facie case. Petitioner claimed that discrimination operated in her removal from employment. The Commission analyzed her sex and age claims under the three-step burden-shifting process of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Commission decided that petitioner failed to establish a prima facie case, as she offered no evidence comparative or otherwise to satisfy her burden of proof. Baker v. Department of Treasury, EEOC Petition No. 03990088 (March 30, 2000).
Prima facie case of age discrimination. Agency in its decision on this non-selection case concluded that complainant failed to establish his prima facie case because the selectee was also over the age of 40. On appeal, the Commission clarified that the comparison employee need only be "considerably younger." Held: complainant, who was six years older than the comparator, satisfied his prima facie case of age discrimination. Dills v. Department of Transportation, EEOC Appeal No. 01983809 (January 7, 2000).
Agency's explanation did not satisfy its burden of production. The reasons given by the Department of Labor for not selecting the complainant were neither specific, clear, nor individualized. As a result, the explanation was insufficient to give complainant a meaningful opportunity to challenge it. Woodard v. Department of Labor, EEOC Appeal No. 01970288 (February 1, 2000), reconsideration denied, EEOC Request No. 05A00416 (June 5, 2000).
Agency's legitimate, nondiscriminatory reason: Not similarly situated. Both complainant and the coworker were terminated for engaging in inappropriate behavior, but the coworker's termination was rescinded as a result of a union grievance he filed. While he had the right to file a union grievance, complaint did not because she was a casual (non career) employee. Petitioner was not similarly situated to her coworker, the Commission ruled. The U.S. Postal Service's legitimate, non-discriminatory reason for its action--that the coworker's termination was rescinded as a result of a grievance-- satisfied its burden under McDonnell-Douglas. Nelson v. United States Postal Service, EEOC Appeal No. 01970636 (February 3, 2000).
Preponderance of the evidence. The U.S. Postal Service did not respond to complainant's claims for a higher back pay payment in this petition for enforcement of an EEOC Order. Complainant submitted calculations for administrative leave for out-of-schedule hours she had worked. Because the agency failed to provide evidence or argument to rebut complainant's claims, the Commission granted complainant's petition for enforcement, found that the U.S. Postal Service did not comply with the EEOC Order, and ordered the agency to pay the administrative leave amount. Puckett v. United States Postal Service, EEOC Petition No. 04990029 (March 29, 2000).
Breach allegations. In a case involving a settlement agreement's "no reprisal" clause, the Commission applied the established principle that complainant cannot use settlement breach contentions to challenge new incidents of retaliation or discrimination. Instead, the proper procedure for challenging such new acts is through the EEO counseling and complaint process. Maietta v. United States Postal Service, EEOC Request Nos. 05980091, 05980666 (January 7, 2000).
Limitations on Access to EEO complaint files. EEO complaint files and EEO appeal files are protected by the Privacy Act, 5 U.S.C. 552a. They are all contained in a Privacy Act system of records termed EEOC/GOVT-1. The Privacy Act imposes certain controls over how the information in the files is used. For example, persons other than the complainant are not permitted access to the files unless specifically permitted by the Act.
Disclosure to others is permitted only if the complainant has given prior written consent, or if the disclosure would meet one of 12 specified conditions. The two conditions most likely to apply in the context of an agency's EEO program are: 1) disclosure to employees of the agency where the EEO file is kept, who have a need for the file information in the performance of their duties; and 2) disclosure permitted under certain published "routine uses." As the Act requires, the routine uses permitted for complaint files and appeal files are published in a systems notice. 42 Federal Register 7949 (February 8, 1977); 56 Federal Register 29580 (June 28, 1991).
For purposes of agency complaint processing, one of the routine uses permits access by an authorized complaints examiner (administrative judge), an EEO investigator, an arbitrator, and any other duly authorized official who is engaged in investigating or settling a complaint. Another routine use that is important to complaint processing permits the agency to "disclose, in response to a request for discovery or for appearance of a witness, information that is relevant to the subject matter involved in a pending judicial or administrative proceeding." Other routine uses include disclosure to a congressional office where the complainant has requested a congressional inquiry, to agencies or parties involved in litigation, and to appropriate authorities where there is a potential violation of civil or criminal law.
The EEOC Management Directive MD-110 gives more detailed guidance on the permitted disclosure to witnesses. Agencies may disclose information and documents to a witness who is a federal employee where the investigator decides that disclosure is necessary to obtain information from the witness. See Chapter 6, "Development of Impartial and Appropriate Factual Records," page 6-14. The examples given in MD-110 are disclosure to explain the claims in a complaint, or to explain a manager's articulated reason for an action so that the investigator can develop evidence bearing on that reason.