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The DIGEST Of Equal Employment Opportunity Law

Volume XIX, No. 4

Office of Federal Operations

Fall 2008


Inside

Selected EEOC Decisions on:

A ROUNDUP OF SELECTED NOTABLE EEOC DECISIONS FROM FY 2008
AND SUPREME COURT DECISIONS


The Digest of EEO Law is a quarterly publication of EEOC's Office of Federal Operations (OFO)

Carlton M. Hadden, Director, OFO
Douglas A. Gallegos, Acting Director, OFO's Special Services Staff
Digest Staff
Editor: Arnold Rubin
Writers: Robyn Dupont, Gerard Thomson, Arnold Rubin, Joseph Popiden

The Digest is now available online through EEOC's homepage at www.eeoc.gov.


SELECTED EEOC DECISIONS

(With this Fall 2008 edition, the Digest inaugurates a feature containing a sampling of summaries of decisions of note, some appearing in previous issues, selected by the staff of the Digest from among the volume of decisions the EEOC issues each fiscal year. The summaries are not intended to be either exhaustive or definitive as to the selected subject matter. For summaries of decisions involving claims of harassment, see by statute as well as under multiple bases. The Digest acknowledges the special contributions of Robyn M. Dupont to this issue.– Ed.)

Attorney’s Fees

(See “Findings on the Merits,” this issue. – Ed.)

Class Complaints

Class Certification Upheld. The Commission affirmed an Administrative Judge’s (AJ’s) certification of a class of individuals with disabilities in permanent rehabilitation positions who had their duty hours restricted beginning on March 24, 2000. The Commission found that the claim did not involve a collateral attack on the workers’ compensation process. The Commission found that the class agent was substantially limited in lifting; that the class agent timely contacted an EEO Counselor and timely moved for class certification; and that the class satisfied the commonality and typicality requirements. Finally, the Commission determined that because the class could include up to 26,000 employees as well as 861 individuals who had filed disability complaints related to their duty hours, the class satisfied the numerosity requirement. Edmond C. Walker v. USPS, EEOC Appeal No. 0720060005 (March 18, 2008), request for reconsideration denied, EEOC Request No. 0520080443 (May 16, 2008).

Compensatory Damages

(The decisions below are a selected sampling of awards of compensatory damages. See, also, “Findings on the Merits,” this issue. – Ed.)

$197.000.00. The Commission found that the agency terminated complainant due to her non-epileptic seizures and anxiety disorder. Following a hearing on the issue of compensatory damages, an AJ awarded complainant $130,000.00 in non-pecuniary damages, and $67,458.63 in pecuniary damages. On appeal, the Commission noted that complainant did suffer from a pre-existing condition. However, the record showed that complainant's anxiety and depression were significantly exacerbated by the discrimination. Complainant began to cut herself, which she had not done before, and was admitted to a psychiatric hospital under a suicide watch. Most significantly, after the discrimination, complainant sought public assistance for the first time in her life, and lost her health insurance, which had been her link to a support network that provided her with funding for prescription medication and therapy. Jo Fellows-Gilder v. Department of Homeland Security, EEOC Appeal No. 0720070046 (January 31, 2008).

$136,000.00. An AJ found discrimination on complainant’s racial harassment claim and awarded $6,300.00 in pecuniary compensatory damages and $130,000.00 in non-pecuniary compensatory damages. On appeal, the Commission found that the evidence showed that complainant had incurred $6,300.00 in out-of-pocket expenses. In addition, the record showed that complainant endured two years of harassment which resulted in complainant’s hospitalization, his becoming suicidal, and his receiving electro-shock treatment. The record further showed that as a result of the harassment, complainant became depressed and withdrawn and his relations with his children became severely strained. Paul L. Terban v. Department of Energy, EEOC Appeal No. 0720040117 (April 3, 2008).

$85,000.00. The Commission awarded complainant non-pecuniary damages in the amount of $80,000.00 and pecuniary damages in the amount of $4,918.75 after a finding that complainant was discriminated against on the bases of race, sex, and disability when she was denied a reasonable accommodation. While the agency asserted that it made efforts to accommodate complainant, witness testimony showed that complainant made repeated requests to two managers for assistance with duties that were outside of her medical restrictions, but the requests were either ignored or met with hostility. Complainant’s back condition was exacerbated due to the discrimination, and she sought treatment from a physician. Gertrude L. Buckner v. Department of Veterans Affairs, EEOC Appeal No. 0720070052 (January 3, 2008).

$75,000.00. The Commission affirmed an AJ’s award of non-pecuniary damages in the amount of $75,000.00 for a finding of discrimination on the bases of race, national origin, and reprisal when complainant’s position was not reclassified under the peer-based position classification system, resulting in his not being promoted. Complainant suffered from sleeplessness, humiliation, and social withdrawal which lasted approximately one and one-half years. Testimony from complainant’s daughter corroborated his claim. Chong Soon Kim v. Department of Agriculture, EEOC Appeal No. 0720070048 (January 3, 2008).

$50,000.00. An AJ found that complainant was subjected to a hostile work environment based on his race when his subordinates disrupted meetings, undermined his authority, and made threats of violence. On appeal, the agency only contested the amount of non-pecuniary damages, arguing that the emotional distress complainant suffered was related to factors other than the discrimination. The Commission found that the award of $50,000.00 in non-pecuniary damages was well supported by the record, as complainant had endured several years of humiliation and bigotry, and was still seeking treatment for his emotional distress at the time of the hearing. Rickie Martin v. Department of Justice, EEOC Appeal No. 0720060069 (January 11, 2008).

$15,000.00. In a prior appeal the Commission found that the agency retaliated against complainant by not selecting him for the Acting Division Director detail, and remanded the matter for a decision on compensatory damages. The agency determined that complainant was not entitled to compensatory damages because he neither provided objective evidence of his harm, nor showed a nexus between the discrimination and the harm alleged. On appeal the Commission disagreed, finding that complainant had established the relevant nexus, and that he was therefore entitled to an award of non-pecuniary damages. The Commission noted that complainant suffered from depression prior to the discriminatory act, and as such, his pre-existing condition had to be considered in determining the award. The Commission found, however, that the agency’s action exacerbated complainant’s depression and caused him to suffer emotional harm, loss of enjoyment of life, and damage to his reputation. Based on the foregoing. the Commission found that complainant was entitled to compensatory damages in the amount of $15,000.00. Worley L. Reed v. Department of State, EEOC Appeal No. 0120081416 (March 17, 2008).

None. The agency found that, although it had provided complainant with multiple reasonable accommodations, it discriminated against her in violation of the Rehabilitation Act by failing to conduct a sufficiently broad search for a suitable reassignment after it became clear that complainant could no longer perform the essential functions of her Claims Examiner position. The agency further found that, because it had acted in good faith in both accommodating and attempting to accommodate complainant, it should not be liable for compensatory damages. On appeal the Commission agreed, finding that the agency’s actions toward complainant over an extended period of time were in good faith and thus sufficient to overcome the agency’s obligation to pay proven compensatory damages. Cecilia S. Manjarres v. Department of Veterans Affairs, EEOC Appeal No. 0120064538 (March 5, 2008).

Dismissals

(See, also, by category, this issue.—Ed.)

Findings on the Merits and Related Decisions

(See by statute, as well as multiple bases, this issue. –Ed.)

--Under the ADEA—

Age-Based Harassment. Complainant alleged, among other things, that he was discriminated against on the basis of his age (57) when he was harassed and issued a Letter of Reprimand, in part for not reporting for a detail. The Commission found that the responsible management official (RMO) made age-related comments so severe as to constitute direct evidence of age-based harassment. These comments, which the RMO made to various officials included: “You know I can’t have that old fart, he just drives me nuts”; “I should have got rid of that old son-of-a-bitch when I had my chance….[b]ut I’m going to have another chance”; he was “going to get that old man, and get him out of government.”; and “I don’t know why [complainant] just doesn’t retire, he needs to retire.” The Commission ordered the agency to expunge the Letter of Reprimand, and provide EEO training to this responsible agency official. John D. Wahnee v. Department of the Interior, EEOC Appeal No. 0120055072 (May 7, 2008).

--Under the Equal Pay Act –

Equal Pay Act Violation Found. Complainant, a GS-13 attorney in agency's Denver Regional Office, alleged that the agency violated the Equal Pay Act (EPA) and Title VII when it paid male attorneys at the GS-14 level more for the same work than it did female attorneys. After a hearing, an AJ found that the agency violated the EPA and Title VII. Furthermore, the AJ found that the violation was willful, which meant, under the EPA, that complainant would be awarded liquidated damages, i.e., double the back pay award. The AJ found that the work performed by complainant and the GS-14 male comparative employee constituted equal work. The agency, on appeal, did not contest the AJ's finding that complainant and the male comparative GS-14 attorney performed substantially equal work. The agency argued that it had set forth an affirmative defense to the EPA, that the difference in pay was based on a factor other than sex. The Commission, however, found that the job classification system relied upon by the agency was not a bona fide merit system. The Commission, as relief, ordered the agency to retroactively promote complainant to the GS-14 level, with back pay, liquidated damages in the amount of the back pay, and attorney's fees and costs. Hazel E. Hanley v. Federal Labor Relations Authority, EEOC Appeal No. 0720060033 (June 6, 2008), request for reconsideration denied, EEOC Request No. 0520080677 (September 11, 2008).

--Under the Rehabilitation Act—

Breach of Medical Confidentiality. The Commission found that the agency violated the Rehabilitation Act when complainant's supervisor disseminated information regarding complainant’s medical condition. Complainant alleged that the agency discriminated against him on the basis of disability (heart disease and high blood pressure) when, on August 29, 2005, he was confronted about his heart condition in front of his coworkers. The record disclosed that complainant's supervisor lectured complainant in front of coworkers about the dangers of smoking while having heart disease. The Commission found that the dissemination of this information constituted a violation of the Rehabilitation Act since the medical condition or history of any employee must be treated as a confidential medical record. The agency was ordered to provide EEO training for the supervisor in question. Danny L. Price v. USPS, EEOC Appeal No. 0120070997 (May 22, 2008).

Improper Medical Inquiry. Complainant alleged that his supervisor called him at home and harassed him about his sick leave usage. Complainant also alleged that his supervisor contacted his physician and asked that complainant's physical therapy appointments be scheduled at the agency's Medical Center, rather than at his own physical therapist's office, where he was receiving physical therapy. The Commission held that the supervisor made an inappropriate disability-related inquiry when she contacted complainant's physician's office, and inquired as to whether he could do his physical therapy at the facility where they worked, instead of at his physical therapist's location. The Commission found that when the supervisor contacted complainant's physician, information about complainant's disability could have been disclosed, and was made without any permission by complainant. Although the supervisor averred that she contacted the physician and requested the change so as to protect complainant's leave usage, the decision found that the inquiry was neither job related nor consistent with business necessity, and was thus totally inappropriate. The decision also found some evidence that the supervisor posed as a Workers’ Compensation representative in order to gain the information. Because the inquiry was neither consistent with business necessity nor related to the need to comply with complainant's restrictions, it violated the Rehabilitation Act. The agency was ordered to provide training for the responsible supervisor, and conduct a supplemental investigation into the possibility of compensatory damages for complainant. Jose F. Torres v. Department of Veteran's Affairs, EEOC Appeal No. 0120061190 (February 6, 2008).

Prohibited Pre-Employment Inquiry. Complainant applied for a higher-graded position but was not selected despite being rated as the top candidate by the interview panel. Complainant claimed, among other things, that the selecting official was provided with a copy of her injury report prior to his making a final selection for the position at issue. The Commission found that the selecting official's review of complainant's injury record was a prohibited pre-employment inquiry and, as such, a violation of the Rehabilitation Act. Citing insufficient information in the record, the Commission remanded the separate issue of whether the failure to hire the complainant was based on unlawful use of the injury report. As relief, the Commission ordered training for the named official. Junita L. Green-Collins v. Department of the Interior, EEOC Appeal No. 0120061125 (May 8, 2008).

Denial of Effective Accommodation:Teleworking. The Commission found that the agency discriminated against complainant on the basis of her disability (asthma) when it denied her request to work from home during the duration of office renovations. Specifically, the agency unilaterally chose to place complainant in another office space in the same building on the same floor, an accommodation that proved ineffective. In particular, the Commission noted that, while working on the same floor where the renovations were taking place, complainant experienced a severe asthmatic attack, sought medical attention at the hospital, and missed two weeks of work. Moreover, the agency’s assertion that allowing complainant to work from home, for the duration of the office renovations, would have created an undue hardship was rebutted by evidence that the agency allowed complainant’s coworker to work from home for an entire year. Accordingly, the Commission found that, by failing to effectively accommodate complainant, the agency violated the Rehabilitation Act. The Commission ordered reinstatement of leave and investigation into compensatory damages. Marchia L. Williams v. Social Security Administration, EEOC Appeal No. 0120054126 (October 4, 2007).

Denial of Effective Accommodation: Access to Restrooms. Complainant, a permanent wheelchair user, alleged that he was discriminated against based on disability when he was not afforded effective and reasonable access to the agency’s restrooms. An AJ initially found that this claim constituted a recurring violation of failure to provide a reasonable accommodation. The AJ explained that the claim was comprised of the nonfeasance by the agency, through complainant’s supervisor, to counsel the employees under his control that they should refrain from using the wheelchair accessible stalls if they were not disabled. The AJ further found that providing reasonable accommodation in this case would not have imposed undue hardship on the agency. The Commission found no basis for disturbing the AJ’s finding that the agency violated the Rehabilitation Act. The agency was ordered to pay complainant $6,500.00 in non-pecuniary compensatory damages, and $34.933.38 in attorney’s fees and costs. T. Jameel Muhammad v. Social Security Administration, EEOC Appeal No. 0720070057 (February 12, 2008).

Failure to Accommodate: Change of Tour and Placement on Enforced Leave and Demotion. Petitioner, a mail-handler, filed a mixed case complaint alleging that the agency discriminated against him based on disability (diabetes mellitus) when it placed him on enforced leave, and later demoted him by reassigning him to a lower-graded custodial laborer position, instead of reassigning him to a tour within his medical restrictions (i.e., the day tour as opposed to the night shifts). Following its investigation, the agency issued a final decision concluding no discrimination occurred. Petitioner appealed the decision to the Merit Systems Protection Board, which upheld the agency’s actions, finding, among other things, that petitioner did not show that he was substantially limited in a major life activity, much less was a “qualified” individual with a disability, or that his demotion was involuntary. Therefore, the Board concluded petitioner was unable to establish a violation of the Rehabilitation Act. Petitioner filed a petition for review with the Commission, and the Commission differed with the Board’s conclusion that petitioner had not established discrimination on the basis of his disability. The Commission found that the evidence established that petitioner was a qualified individual with a disability as a result of his diabetes, and that the agency denied petitioner reasonable accommodation within the requirements of the Rehabilitation Act. Further, the Commission noted that had the agency acted properly and timely on petitioner’s accommodation request for his mail-handler position, it would not have resorted to placing him on enforced leave or in a lower-graded position. The case was remanded to the Board for its consideration and the awarding of relief. William J. Parks v. United States Postal Service, EEOC Petition No. 0320070127 (July 29, 2008).

Failure to Accommodate: Denial of Light Duty Assignment. Complainant alleged that she was discriminated against on the basis of disability (back injury) when, among other things, she was denied a light duty assignment. The Commission found that the agency failed to accommodate complainant's disability with regard to the light duty assignment. The Commission determined that complainant's 15 pound lifting restriction showed that she was substantially limited in the major life activity of lifting. The Commission found that the agency improperly denied complainant's light duty request without making an individualized assessment of her disability and failed to accommodate her lifting restriction in other accommodation offers. Nevertheless, the Commission found that the agency acted in good faith in attempting to accommodate complainant. As relief, the Commission awarded the restoration of 93 hours of annual leave, and the training of employees on the Rehabilitation Act. Leisha Guilbeaux v. USPS, EEOC Appeal No. 0720050094 (August 7, 2008), request for reconsideration denied, EEOC Request No. 0520080810 (October 15, 2008).

Failure to Accommodate: Denial of Sign Language Interpreter. Complainant, an Intelligence Officer, alleged he was discriminated against on the basis of his disability (hearing impairment) when his request for a full-time sign language interpreter to accompany him on two separate deployments to Iraq was not approved by the agency. On appeal, the Commission concluded that the agency had failed to meet its burden of establishing undue hardship as justification for denying complainant his requested reasonable accommodation. The evidence established that deploying to a war zone was beneficial for career advancement within the agency, and complainant was being denied equal access to this opportunity. As relief, the Commission ordered the agency to provide complainant with a sign language interpreter the next time he is selected for a deployment opportunity and awarded complainant back pay. David J. Cruzan v. Department of Defense, EEOC Appeal No. 0120071893 (August 15, 2008).

Agency Fails to Show That Complainant’s Disability Poses a Direct Threat. The Commission found that the agency discriminated against complainant on the basis of disability (heart murmur) when it found complainant medically disqualified for the position of Police Officer. The Commission found that the agency regarded complainant as having an impairment which substantially limited his ability to work in a broad range of jobs in various classes that require strenuous activity. The Commission further found that the agency failed to show complainant was a direct threat. The Commission awarded $3,000.00 in non-pecuniary, compensatory damages, back pay, pay for lost overtime, and attorney’s fees. James D. Vavrek v. Department of Justice, EEOC Appeal No. 07A40068 (November 1, 2007), request for reconsideration denied, EEOC Request No. 0520080216 (February 4, 2008).

Failure to Hire: Requirement of Commercial Driver’s License Pretextual. Complainant alleged that he was discriminated against on the basis of disability (vision impairment) when the agency did not hire him for the position of Detention Enforcement Officer. Complainant was found medically ineligible because the vision in his right eye was worse than 20/200. Complainant requested that the agency reasonably accommodate him by waiving the medical qualifications determination and the commercial driver's license requirement. The Commission found that complainant was qualified, because he employed multiple means to compensate for his vision impairment and had successfully participated in shooting competitions. The Commission found that the agency should have waived its vision standard for complainant. The agency failed to make an individualized assessment of the risk posed by complainant and did not show there was a direct threat. The Commission also found that the requirement of a commercial driver's license was pretext for disability discrimination. The complainant was awarded $9,000.00 in non-pecuniary compensatory damages and $46,471.00 in attorney's fees. The agency was ordered to place complainant into the position for which he was not selected, with back pay, contingent on the results of a current assessment of complainant's present qualifications and abilities. Ray Poquiz v. Department of Homeland Security, EEOC Appeal No. 0720050095 (April 11, 2008), request for reconsideration denied, EEOC Request No. 0520080524 (June 19, 2008).

Complainant Regarded as Disabled and Terminated. Complainant alleged that she was discriminated against on the basis of disability (chronic pain) when she was terminated from her temporary position of social worker. After a video hearing, an AJ found discrimination. The AJ found that the agency regarded complainant as an individual with a disability. According to the record, once the agency discovered that complainant took pain medication, it terminated her because the agency perceived her as a safety threat. On appeal, the Commission found that the AJ properly determined that the agency regarded complainant as substantially limited in the major life activity of working because she was regarded as unable to do any jobs requiring driving. The Commission found that the agency failed to meet its burden of proving that complainant was a direct threat because it conceded that it erroneously concluded that complainant was unable to drive. The agency also argued that complainant failed to qualify on the Office of Personnel Management (OPM) certificate for the job. The Commission, however, found that the agency's argument was pretext and concluded that the agency violated the Rehabilitation Act when it terminated complainant. As relief, the Commission ordered back pay, training of managers in EEO law, $15,000.00 in non-pecuniary compensatory damages, and attorney's fees. Christine Dremmel v. Department of Veterans Affairs, EEOC Appeal No. 0720060044 (July 17, 2008).

--Under Title VII—

Race Discrimination

Termination During Probation; Disparate Training. The Commission affirmed the AJ’s finding of race (African-American) discrimination when complainant was terminated during his probationary period. The agency asserted that complainant was terminated for poor performance. The Commission noted, however, that complainant did not receive the proper training to meet expectations. Uncontroverted testimony showed that complainant, the only African-American probationary employee at the facility in the last 10 years, was given only 50 days of on-the-job training while every white probationary employee was given a full 90 days of training. The Commission also found it disturbing that the only African-American employee at the facility and the Assistant Union Steward were told not to talk to complainant. The agency was ordered to reinstate complainant, pay $28,372.26 in back pay, with interest, and pay $9,375.00 in attorney’s fees and costs. Myron Hayes v. United Postal Service, EEOC Appeal No. 0120070965 (January 3, 2008).

Termination During Probation; Hostile Work Environment. Complainant claimed discrimination based on race (African-American) when she was terminated as a city carrier during her probationary period. The Administrative Judge found that the agency discriminated against complainant in that it maintained a racially-hostile atmosphere at the facility. In addition, complainant did not receive a fair assessment of her performance and was held to a higher standard than white probationers and permanent employees. With regard to the remedy, however, the Commission noted that complainant was subsequently assigned to another facility and terminated when she lost accountable keys to postal boxes. Thus, complainant was awarded back pay for the two-week period between her first termination and her second termination, compensatory damages in the amount of $8,000.00, and attorney’s fees and costs. Gaye Banks v. United States Postal Service, EEOC Appeal No. 0720070043 (April 17, 2008).

Termination During Probation; Hostile Work Environment. The agency appealed from an AJ’s s finding that it discriminated against complainant on the basis of race (African-American) when she was terminated as a city carrier during her probationary period prior to her 60-day evaluation. On appeal, the Commission rejected the agency’s contentions that complainant’s work was deficient, and that the incidents at the facility cited by the AJ were taken out of context. The Commission determined that the record supported a finding that the agency maintained a racially-hostile atmosphere at the facility, that complainant did not receive a fair assessment of her performance, and that she was held to a higher standard than white probationers and permanent employees. Complainant was awarded reinstatement, back pay, compensatory damages, and attorney’s fees and costs. Pamela Scott v. United States Postal Service, EEOC Appeal No. 0720070044 (March 18, 2008).

Disparate Imposition of Discipline. The Commission found that the agency disparately disciplined complainant based on his race when he was given a Notice of 7-Day Suspension for having an excessive blood alcohol level at work. The Commission determined that complainant established a prima facie case of race discrimination even though his first line supervisor was not the same as those of the comparators he identified. The Commission found that it was the second line supervisor who made the decision to discipline complainant as well as the comparators. Thus, complainant and the comparators were similarly situated. The Commission recognized that the agency has the authority to discipline those employees who fail to comply with the agency’s prohibition on alcohol use. The Commission found that in this case, however, the agency did so in a discriminatory manner. Complainant received a seven-day suspension, whereas neither of his comparators received such severe disciplinary action after their first offense. Given the disparity in the discipline issued to complainant and his comparators, the Commission concluded that complainant’s race actually motivated his first and second line supervisors. EEOC ordered the agency to expunge the record of discipline from complainant’s official personnel file (OPF) and remanded the matter for an investigation into his entitlement to compensatory damages. Stanley L. Ferrell v. United States Postal Service, EEOC Appeal No. 0120064642 (June 17, 2008).

Nonreferral for a Position. Complainant, a Clinical Nurse Specialist, applied for an Instructional Systems Specialist position. Complainant filed an EEO complaint alleging discrimination based on race (African-American) when she was not referred for the position. Following a hearing, an AJ issued a finding that the agency’s reason for not referring complainant’s application was pretextual. While the agency asserted that the two candidates who were referred met four of the five educational requirements for the position, a review of their transcripts showed that neither candidate actually met the stated criteria. In addition, the Human Resources Specialist who compiled the referral list refused to participate in the hearing to explain the discrepancies. The Commission affirmed the finding on appeal and ordered the agency to place complainant in the position, with back pay, and $7,500.00 in non-pecuniary compensatory damages. Jacqueline McCarroll v. Department of Veterans Affairs, EEOC Appeal No. 0720070060 (February 12, 2008).

Harassment: Comments and Exclusion. The Commission found that complainant's supervisor, the Assistant District Director, and the Director subjected complainant to racial harassment. Complainant, who is African-American, was subjected to a wide variety of derogatory comments and was excluded from Director's meetings, humiliated in front of her subordinates, and directed not to eat lunch with the only other African-American supervisor in the office. The Commission concluded that the alleged conduct was based on race and was sufficiently severe as to render the work environment hostile. In addition, the agency did not meet its affirmative defense. The Commission awarded complainant $63,000.00 in compensatory damages and ordered the agency to reassign the harassers to the extent that they continued to be employed in complainant's chain of command. Melenese Richardson v. Department of Homeland Security, EEOC Appeal No. 0120070003 (May 22, 2008), request for reconsideration denied, EEOC Request No. 0520080622 (July 22, 2008).

National Origin Discrimination

Hostile Work Environment; Assignments. The Commission found that complainant was discriminated against on the basis of national origin (Hispanic) when he was subjected to a hostile work environment. The record showed that discriminatory comments concerning complainant’s national origin were made by his co-workers. In addition, complainant’s supervisor accused complainant of stealing license plates and selling them in Mexico. When the harassment was reported, management officials failed to take action. The Commission noted that discrimination toward minorities permeated the workforce in the form of demeaning comments and adverse treatment. Also, there was a pattern of assigning minority employees undesirable tasks including custodial and remedial administrative assignments. Complainant was ultimately given a memorandum of warning, which the Commission noted was another act of harassment. Finally, the Commission stated that many of the offensive comments were made in front of managers immediately after a meeting about EEO issues. The agency was ordered to ensure that complainant was no longer supervised by the responsible official, provide 40 hours of EEO training to managers, provide 40 hours of EEO sensitivity training to employees, and conduct an investigation into whether complainant was entitled to compensatory damages. George De Los Santos v. Environmental Protection Agency, EEOC Appeal No. 0120061139 (January 11, 2008), request for reconsideration denied, EEOC Request No. 0520080325 (August 4, 2008).

Hostile Work Environment; Removal. The Commission found that complainant had been subjected to a hostile work environment on a continuing basis over a three-year period because of his national origin (Mexican-American), and that the harassment culminated in his removal. The record, including statements of various employees, showed that a supervisor frequently used various slurs toward complainant, and displayed obvious dislike of Hispanic employees. The Commission found that the supervisor’s conduct was unwelcome, and was sufficiently severe and pervasive to alter complainant’s work environment. In fact, the Commission noted that the harassment was so pervasive that the agency should have had constructive knowledge of the conduct. Finally, complainant was subjected to a tangible employment action when he was terminated. The agency was ordered to offer complainant reinstatement to his position, remove all references to his removal from his personnel records, provide a back pay award, determine complainant’s entitlement to compensatory damages, and provide training for the responsible management officials. Daniel Padilla v. United States Postal Service, EEOC Appeal No. 0120063761 (April 8, 2008).

Sex Discrimination

Frequent Change in Schedule. The Commission found that complainant was subjected to discrimination on the basis of sex (male) when, in 2004. his schedule was frequently changed. Evidence in the record showed that all the male employees were treated similarly to complainant, but no female employee had such experiences. In addition, the contradictory testimony provided by agency officials supported a finding of pretext. Complainant was awarded $13,000.00 in compensatory damages. Donald Dennis v. United States Postal Service, EEOC Appeal No. 0720060071 (May 30, 2008).

Sexual Harassment By Supervisor. The Commission found complainant was subjected to unlawful sexual harassment by his first level supervisor, and that agency management failed to take prompt corrective action. The record showed that the supervisor made unwelcome sexual advances toward complainant. The Commission found that the incidents described by complainant, including comments about his body and how he looked, sexual innuendos, and unwelcome touching were sufficiently severe to create an intimidating, hostile and offensive work environment. Further, the only action taken by the agency, that is, offering complainant a change in schedule to a less desirable position, was inadequate. Thus, the agency failed to take prompt and effective remedial action. The agency was ordered to remove complainant from the supervisor’s chain of command, to expunge his record of tainted disciplinary action, and to consider complainant’s claim for compensatory damages. Kenneth D. Holmes v. Department of Veterans Affairs, EEOC Appeal No. 0120055036 (November 9, 2007).

Sexual Harassment: Agency Liability. The Commission found that complainant was subjected to sexual harassment in the form of inappropriate verbal comments and physical contact, and that liability could be imputed to the agency because it failed to prove that it exercised reasonable care. The agency was placed on notice of the abuse as early as 2001, when complainant informed several managers that she believed she was being "abused" and blocked from leaving her unit. The Commission also found that the agency failed to act promptly and effectively, in that its investigations into the sexual harassment claims were still ongoing in 2005, that is, two years after the incidents at issue. As relief, the Commission ordered the agency to consider disciplinary action against the responsible official, conduct training, and pay proven compensatory damages and attorney’s fees. Elizabeth Thompson v. United States Postal Service, EEOC Appeal No. 0120060791 (January 16, 2008).

Sexual Harassment By Co-Worker. The Commission found that complainant was subjected to sexual harassment by a co-worker. The record showed that complainant’s co-worker came up behind her, put his arms around her shoulders, pressed his body into hers and gyrated his pelvis against the back of her body for a prolonged period of time, while saying “oh, baby, oh baby.” The Commission found that complainant established that her co-worker’s actions were because of her sex and were sufficiently severe to render her work environment hostile. The Commission stated that the unwelcome, intentional touching of complainant’s intimate body areas was sufficiently offensive to alter the condition of her working environment. The Commission further found that the agency failed to avoid liability since it did not adequately address the situation or provide corrective remedies for the parties involved. The Commission remanded the case for a hearing on the issue of compensatory and other damages, including reimbursement of annual and/or sick leave. Pamela Weaver v. United States Postal Service, EEOC Appeal No. 0120065324 (August 26, 2008), request for reconsideration denied, EEOC Request No. 0520090004 (October 29, 2008).

--Under Multiple Bases—

Discrimination Found on Multiple Bases

Race, Sex and Disability Discrimination: Denial of Reasonable Accommodation. The Commission affirmed an AJ’s finding of discrimination on the bases of race (African-American), sex (female), and disability (cervical strain/sprain) when complainant was not accommodated with a high back chair. According to the record, complainant was working in a limited duty position when she was transferred to another facility. When she asked for a high back chair, she was told that they were either locked up, had someone else’s name on them, or had wheels. Complainant was sent home for over one month before the agency finally provided her with a suitable chair. The record showed that the agency was able to find a suitable chair for a male Asian employee within hours of his arrival at the facility. The agency offered no explanation for its failure to provide a suitable chair for complainant within a similar time frame. The agency was ordered to provide complainant with back pay for the period she was out of work, and $2,250.00 in compensatory damages. Janice Jones v. United States Postal Service, EEOC Appeal No. 0720070069 (November 8, 2007).

Race and Reprisal Discrimination: Harassment. The Commission affirmed an AJ’s finding that complainant was harassed on the bases of race (African-American) and in reprisal for prior protected EEO activity. According to the record, complainant was subjected to numerous hostile acts over a period of years, including having administrative leave changed to sick leave, and being subjected to a fitness for duty examination. In addition, complainant’s supervisor described complainant as a potential “homicidal maniac.” The Commission ordered the agency to pay complainant non-pecuniary compensatory damages in the amount of $85,000.00 based on evidence that complainant required long-term treatment, took three medications, and felt traumatized. Earline J. Lucas v. Department of Veterans Affairs, EEOC Appeal No. 0720070051 (January 3, 2008).

Race and Reprisal Discrimination: Nonselection and Harassment. The Commission affirmed an AJ’s finding that complainant was discriminated against on the basis of her race (African-American) and in reprisal for prior protected activity when she was not selected for the position of Bankruptcy Specialist, and her temporary detail as a Supervisory Revenue Officer ended, resulting in payment problems. The AJ also found that complainant was subjected to a retaliatory hostile work environment due a number of incidents. In making these findings, the AJ stated that the testimony from management officials was vague and not worthy of credence. The Commission found that the AJ’s findings of discrimination and retaliation were supported by substantial evidence in the record. The Commission affirmed the AJ's award of $85,000.00 in compensatory damages. Vera J. Robinson v. Department of the Treasury, EEOC Appeal No. 0720070015 (May 22, 2008), request for reconsideration denied, EEOC Request No. 0520080667 (September 10, 2008).

Race and National Origin Discrimination: Harassment. Complainant alleged discrimination on the bases of race (Native American), and national origin (Cherokee Nation), when his life was threatened by a client and the agency failed to take necessary actions to stop harassment. According to the record, the agency failed to rectify a situation where a customer of the agency repeatedly harassed complainant by, among other actions, referring to complainant as a "worthless Indian,” “dumb Indian,” and “stupid." Complainant was awarded $50,000.00 in non-pecuniary compensatory damages due to his emotional suffering. In addition, the agency was ordered to restore leave complainant used due to the discrimination. Marty Hern v. Department of Agriculture, EEOC Appeal No. 0720060012 (March 10, 2008).

Race and National Origin Discrimination: Nonselections. The Commission found that the agency discriminated against complainant on the bases of her national origin (Asian) and race (Asian) when it did not select her for one of two Human Resources Assistant positions. The Commission found that complainant established a prima facie case of race and national origin discrimination when the agency selected two individuals outside of complainant's protected classes. The Commission further found that the agency failed to articulate a legitimate, nondiscriminatory reason with sufficient clarity such that complainant was afforded the full and fair opportunity to demonstrate that the reason was a pretext for discrimination. Specifically, the selecting official merely stated that she selected the two candidates who were best qualified for the position and who could be trained. The selecting official failed to offer any further clarification as to what specific qualities made those individuals better qualified or more trainable than complainant. Additionally, the Commission found that the record completely lacked any explanation as to why complainant was not selected for the position or why she was not the best candidate. Since the Commission found that the agency failed to provide an articulation of its reasons for not selecting complainant for the positions sufficient to overcome complainant's prima facie case of race and national origin discrimination, the Commission concluded that complainant established by the preponderance of the evidence that she was discriminated against on the bases of her race and national origin. The Commission ordered the agency to offer complainant a Human Resources Assistant position, provide training for the responsible management officials, and investigate the issue of compensatory damages. Brenda Yee v. Department of the Interior, EEOC Appeal No. 0120061381 (July 11, 2008).

National Origin and Reprisal Discrimination: Reassignment and Compensation. Complainant filed two EEO complaints alleging that he was discriminated against on the bases of national origin (Ghana) and in reprisal for prior protected EEO activity when: (1) he was transferred or reassigned to a different position and denied the higher level pay given to the person previously occupying the position; (2) the agency awarded higher pay to the person occupying the position vacated by complainant; and (3) the agency re-posted a vacancy announcement for which complainant applied in order to attract a larger pool of qualified applicants. On appeal, the Commission determined that the agency failed to articulate a legitimate, non-discriminatory reason for complainant’s reassignment. Specifically, the Commission noted that the record was absent any testimony that would explain the reason for that action. In addition, while the Commission noted that the agency articulated legitimate, non-discriminatory reasons for denying complainant a higher level pay, that reason was shown to be a pretext for discrimination, because management officials provided contradictory testimony regarding this matter during the hearing. Accordingly, the Commission concluded that complainant was subject to discrimination when he was not provided the same pay level as others outside of his protected group when performing the same duties and responsibilities. The Commission ordered complainant’s reinstatement to his former position with higher level back pay and benefits, and proven compensatory damages. Michael Opare-Addo v. United States Postal Service, EEOC Appeal No. 0120060802 (November 20, 2007), request for reconsideration denied, EEOC Request No. 0520080211 (May 30, 2008).

Age, Sex and Reprisal: Hostile Work Environment. Complainant, a Field Representative with the Census Bureau, alleged that she had been discriminated against on the basis of age (over 40), sex (female), and reprisal when she was subjected to a hostile work environment. Following a hearing, an AJ found that complainant was subjected to harassment on all alleged bases. The record showed that, among other things, the agency failed to provide complainant with holiday pay, denied her request for “use or lose” leave, assigned her work without notice, drastically reduced her workload and hours, and made burdensome requests for medical documentation. The Commission found that these actions, taken as a whole, were sufficiently severe to constitute discriminatory harassment. Complainant was awarded $100,000.00 in compensatory damages based on evidence that the five years of discriminatory harassment caused complainant to suffer irritable bowel syndrome, chronic depression, and anxiety for which treatment was to continue indefinitely. In addition, the agency was ordered to reinstate complainant’s leave, and pay attorney's fees. Nancy Sorg v. Department of Commerce, EEOC Appeal No. 0720060065 (July 23, 2008), request for reconsideration denied, EEOC Request No. 0520080765 (December 17, 2008).

Reprisal and Disability: Failure to Accommodate. The Commission found that complainant was discriminated against on the basis of disability (reactive airway disease, vasomotor rhinitis, asthma variant, and related conditions) and in reprisal for prior protected EEO activity when management did not accommodate his disability. Specifically, the agency failed to provide complainant with a smoke free tractor trailer designated for his use, which eventually led complainant to stop working. The Commission noted that, given that complainant’s breath function was approximately half of an average person’s in the general population, there was substantial evidence in the record to support a finding that complainant was substantially limited in the major life activity of breathing. Further, complainant was denied an accommodation when he was not provided with a smoke-free truck. The Commission rejected the agency's argument on appeal that complainant was not entitled to back pay, noting that denying complainant back pay for wages lost as a result of an illness which was directly related to the agency's discrimination would be neither equitable, nor consistent with back-pay principles. As for front pay, the decision found substantial evidence in the record to support such an award, in light of the history of an antagonistic relationship between the parties. The Commission awarded complainant back pay, front pay, $95,000.00 in non-pecuniary compensatory damages, and over $60,000.00 in attorney's fees. The decision also ordered payment for all past and future psychological appointments. Robert Barnett v. United States Postal Service, EEOC Appeal No. 0720060019 (May 15, 2008).

--Retaliation—

Reprisal Found

Removal. The Commission affirmed an AJ’s finding that the agency retaliated against complainant when it removed her from her supervisory position. The Commission found that complainant engaged in EEO activity when she informed her supervisor of another Branch Chief’s allegedly discriminatory behavior toward his female subordinate. The Commission rejected the agency’s articulated reasons for complainant’s removal: that she had a harsh and abrasive management style which led it to conclude that she inadequately performed in the position; failed to grasp leadership skills; had poor communication skills; and lacked team skills. The Commission agreed with the AJ’s finding of pretext, pointing out that, prior to complainant ‘s engaging in EEO activity, the agency was willing to work with her to soften her approach and scheduled her for training on becoming a better manager. Finally, the Commission determined that, despite the agency’s contentions that the case was one of “mixed motive,” the AJ applied the correct analysis because he specifically found that retaliation for complainant’s EEO activity was the single motivating reason for her removal. Naomi Detenbeck v. Environmental Protection Agency, EEOC Appeal No. 0720070055 (October 4, 2007), request for reconsideration denied, EEOC Request No. 0520080134 (December 18, 2007).

Not Permitted to Return to Work. The Commission found that the agency retaliated against complainant when she was sent home after working approximately four hours and was not allowed to return to work for more than a month. Complainant established a nexus between her EEO activity (ongoing accommodation requests), and the agency’s action. The Commission noted that the responsible management official failed to provide an affidavit after repeated requests from the investigator, and, thus, the agency failed to articulate a legitimate, nondiscriminatory reason for its action. The agency was ordered to award complainant back pay for the period she was not allowed to work, and to conduct an investigation into her claim for compensatory damages. Robyn J. Thompson v. USPS, EEOC Appeal No. 0120063745 (March 12, 2008).

Publication of EEO Activity: “Reasonably Likely to Deter” Standard. The Commission affirmed an AJ’s finding of retaliation when the agency published a news article revealing that complainant and five other district directors had engaged in EEO activity. Despite the fact that complainant’s EEO case was still pending, and that the article revealed that complainant had engaged in EEO activity, the agency published a summary of the news article, citing its sources, in a widely distributed agency digest that same month. The Commission concluded that the agency’s “re-publication” of the news article constituted the type of activity that is reasonably likely to deter complainant or others from engaging in protected EEO activity. The issues of compensatory damages and attorney’s fees were remanded to the agency. John J. Ingham v. Department of Homeland Security, EEOC Appeal No. 0720070034 (June 17, 2008).

Mixed Motive

Agency Avoids Personal Damages by Satisfying Mixed Motive Defense. Complainant, after not being selected for Program Complaint Specialist position, filed an EEO complaint claiming that the agency discriminated against her based on race (African American) and reprisal for prior EEO activity. She had recently filed a separate EEO complaint that was ongoing at the time of this nonselection. An AJ found that the agency discriminated against complainant in reprisal for EEO activity, but that the matter presented a mixed motive case where the agency had both discriminatory and legitimate reasons for its decision. Specifically, the AJ found discrimination in that agency officials who testified about how the candidates were scored and how the selection was made were not credible, but also found that the agency would have chosen the selectee absent any discrimination due to his superior qualifications. Since the agency carried its burden to show that it would not have selected the complainant even absent discrimination, the complainant could not recover personal damages and relief was limited to training for the responsible officials and attorney’s fees. Ozetta Thomas v. Department of Agriculture, EEOC Appeal No. 0120065053 (July 11, 2008), request for reconsideration denied, EEOC Request No. 0520080744 (October 29, 2008).

Agency Avoids Personal Damages by Satisfying Mixed Motive Defense. Complainant alleged, among other things, that she was discriminated against on the bases of race (African-American) national origin (Jamaican), and in reprisal for prior EEO activity when she was not selected for a Management Assistant position. After a hearing, an AJ found discrimination only on the basis of national origin, explaining that the complainant’s accent played a role in her nonselection. Nonetheless, the AJ also found that the agency would not have selected complainant even in the absence of discrimination because the selectee was more qualified than the complainant. Affirming the AJ’s mixed motive analysis, the Commission on appeal denied complainant’s request for compensatory damages, and affirmed the AJ's award of attorney's fees and costs. Lillas Beckford v. Social Security Administration, EEOC Appeal No. 0120061174 (July 17, 2008), request for reconsideration denied, EEOC Request No. 0520080748 (December 8, 2008).

Remedies

Age-based Retirement Does Not Nullify Back Pay Award. The agency accepted an AJ’s finding that complainant was discriminated against based on age when he was not selected for a GS-14 Supervisor Mine Safety and Health Specialist position, but rejected the AJ’s order to reinstate complainant and pay back pay beyond the date that complainant retired. The agency argued that complainant’s duty to mitigate damages included remaining on the job absent proof of constructive discharge. On appeal the Commission disagreed, finding that, because this case involved an age-based retirement, the employee has earned his right to retire and that it would be unjust to penalize an employee by requiring him to forego retirement in order to recover back pay. Based on complainant’s consistent testimony that he would have retired from federal service in September 2006, had he been selected, because he would have acquired the “high three” year average salary for retirement purposes and received higher retirement annuities, the Commission ordered the agency to provide back pay and all appropriate benefits from September 2003 through September 2006. William Hulvey v. Department of Labor, EEOC Appeal No. 0720070059 (February 7, 2008), request for reconsideration denied, EEOC Request No. 0520080384 (April 17, 2008).

Commission Rejects Pro Rata Award and Orders Full Back Pay. The agency found that complainant and another candidate were subjected to discrimination on the basis of age when they were not selected for a position in favor of a younger individual. In addressing the relief to which complainant was entitled, the agency found that it was unable to determine which candidate would have been offered the position in the absence of discrimination. Thus, according to the agency, the proper remedy was the monetary value of the lost promotion divided pro rata for each complainant up until the date at which the complainants no longer suffered the monetary loss. The remedy did not provide a right for either complainant to be retroactively promoted to the disputed position. The Commission concluded that the agency failed to make even a perfunctory attempt at establishing who would have been selected for the position and imposed sanctions on the agency by ordering it to provide complainant with 100 percent of the back pay and to offer complainant the position or its substantial equivalent. Because complainant had moved in order to assume a supervisory position, the Commission also directed the agency to pay relocation expenses if complainant accepted an offer to return to where the disputed position was located. Lester Coleman v. Department of Labor, EEOC Appeal No. 0120062552 (June 6, 2008), request for reconsideration denied, EEOC Request No. 0520080675 (January 7, 2009).

Commission Broadens Scope of Identity of Training Vendor in Order. On summary judgment, an AJ concluded that complainant was discriminated against due to a perceived disability when the agency failed to hire her as a Registered Nurse. On appeal the Commission affirmed the finding of discrimination, but modified the remedy in part. Specifically, the Commission ordered 16 hours of EEO training for all managerial and supervisory employees charged with making hiring determinations. The Commission noted that the AJ's order was too restrictive with respect to the requirement that the agency use an approved continuing legal education provider. Instead, the Commission determined that it would be sufficient for the agency to utilize an appropriate, reputable training organization, such as the one that normally provides EEO training at the facility. Elizabeth Textor v. Department of Veterans Affairs, EEOC Appeal No. 0720060047 (May 15, 2008).

Sanctions

(See also, “Remedies,” above. –Ed.)

Sanctions Upheld for Untimely Investigation. The Commission found that an AJ did not abuse her discretion when she issued a decision in favor of complainant as sanctions for the agency's failure to timely process and investigate the complaint in accordance with the Commission’s regulations. After expiration of the 180-day period from the date that he filed her formal complaint, complainant sought a hearing before an AJ, and the AJ ordered the agency to produce its records. The agency did not initiate an investigation until after complainant's hearing request and submitted the report of investigation a full month after the AJ Order. The AJ ordered complainant’s retroactive promotion and payment of $1,000.00 in nonpecuniary compensatory damages. On appeal, the agency argued that the sanctions were punitive, that the AJ abused her authority by imposing sanctions against the agency, and that the sanctions imposed were too severe a penalty for the agency’s mere failure to seek an extension of time from complainant. Citing the Commission's inherent power to protect its administrative processes from abuse and to ensure that agencies and complainants follow its regulations, the Commission affirmed the AJ's sanctions and her finding that the agency discriminated against complainant. Lawrence S. Lomax v. Department of Veterans Affairs, EEOC Appeal No. 0720070039 (October 2, 2007), request for reconsideration denied, EEOC Request No. 0520080115 (December 26, 2007).

Adverse Inference Drawn for Agency’s Failure to Produce Evidence. Complainant alleged that she was discriminated against on the basis of her national origin (Hispanic) when she was not selected for a Budget Analyst position. Despite repeated requests from the investigator, the agency failed to provide complainant's application, the selectee's application, or any relevant documentation such as the certificate of eligible candidates and any notes taken by the selecting official. The Commission noted that this evidence was critical for complainant to argue that her qualifications were superior to those of the selectee, and the Commission imposed sanctions against the agency by drawing an adverse inference that the requested information would have reflected unfavorably on the agency. The Commission inferred that complainant would have been able to substantiate her contention that she was better qualified for the position than the selectee. Accordingly, EEOC found that complainant established that the agency's reasons for not selecting her for the position were a pretext for national origin discrimination. The agency was ordered to offer complainant the position at issue. The Commission remanded the issues of back pay and compensatory damages. Graciela McDaniel v. Department of Veterans Affairs, EEOC Appeal No. 0120070869 (May 22, 2008).

Adverse Inference Drawn for Agency Official’s Refusal to Provide Documents. The Commission entered a finding of discrimination in favor of complainant on the bases of race, color, sex, age and reprisal. Complainant had filed a complaint claiming that her performance evaluation was lower than was warranted for the rating period. Complainant compared herself to her three co-workers and believed that at least one of them had been rated higher than she, although she thought her performance to be equal to or better than any of the three. In the course of the investigation, the EEO investigator repeatedly asked the responsible management official for copies of the co-workers' evaluations in order to compare the ratings to complainant's. The official refused to give the documents to the investigator and testified in her affidavit as to what the ratings were for the 3 co-workers. She did not specify, however, which co-worker received what rating. The Commission found that complainant established a prima facie case for each basis, and that the agency's articulated legitimate nondiscriminatory reason was not supported by documentary evidence. The Commission drew an adverse inference against the agency, concluding that the requested information would have reflected unfavorably on the responsible management official and shown that complainant’s performance was better than the comparatives’. Thus, complainant was subjected to discrimination as alleged. As a remedy, the agency was ordered to produce the evaluations, recalculate complainant's evaluation for the rating period, including any raises or awards to which she was entitled under the agency's pay for performance system; raise the evaluation if necessary, but not lower it, and award compensatory damages Sandra P. Jenkins v. United States Postal Service, EEOC Appeal No. 0120064579 (July 8, 2008).

Settlement Agreements

Agency Breached Settlement Agreement When it Accepted Its Insurer’s Opinion Instead of Complainant’s Medical Specialist’s Opinion as to Her Disability. The agency agreed to accept complainant’s medical specialist’s opinion as to whether she was totally and permanently disabled from gainful employment so that she could take disability retirement. Complainant submitted a six-page medical report which provided a review of her medical record and a diagnosis of her disabilities. The insurer, which administered the agency’s Managed Disability Program, denied complainant’s application for disability benefits. It found that the provided information was insufficient and failed to “establish and support [complainant’s] inability to perform the essential functions of [her] own occupation as a computer technician.” The Commission found that the agency had expressly agreed that it would accept as sufficient evidence--for the purpose of disability retirement--an expert’s medical opinion provided by complainant that she was totally and permanently disabled. Regardless of the standards usually applied by the insurer in reviewing disability retirement applications, in this instance the agency agreed that it would be bound by complainant’s secured expert medical opinion. The Commission ordered the agency to reinstate complainant’s disability retirement application and instruct the insurer that complainant’s medical opinion must be accepted as sufficient evidence to support the decision granting complainant’s disability retirement. Olga Velazquez-Mateo v. Department of Defense (Army and Air Force Exchange Service), EEOC Appeal No. 0120082631 (August 25, 2008).

Agency Violates Rotation of Jobs Provision. The settlement agreement provided that there would be rotation of jobs for all career hires and casuals in complainant’s work unit. The agency asserted that its failure to rotate complainant did not breach the settlement because the agency assigned jobs based on “employee availability and skill.” The Commission found that the agency breached the agreement when the supervisor only assigned work on “employee availability and skill.” The Commission held that the agency waived its right to assign work based solely on that criteria and instead agreed to a rotation of jobs. The Commission ordered the agency to provide complainant with the option in writing of either voiding the settlement agreement and reinstating his underlying complaint; returning him to the status quo ante; or accepting the agency’s promise to good faith adherence in the future to the terms of the agreement. Brad J. Harmon v. United States Postal Service, EEOC Appeal No. 0120083257 (November 12, 2008).

Stating a Claim

Former Employee Has Standing to File a Claim of Retaliation. The Commission reversed the agency’s procedural dismissal of a complaint of reprisal brought by a former employee. The dismissed claim concerned complainant’s nonselection for a contract position as a background investigator following his retirement from the agency. Therefore, the agency asserted that he had no standing to file because he was neither an employee nor an applicant for federal employment. The Commission concluded that the term “employees,” as used in the anti-retaliation provision of Title VII, includes former employees. In this case, complainant stated a viable retaliation claim when he alleged the agency rejected him for the post-retirement contract position in retaliation for protected activity he engaged in while he was still employed with the agency. Jeremiah W. Doyle, Jr. v. Department of Justice, EEOC Request No. 0520070207 (October 12, 2007).

Summary Judgment

Genuine Issues of Fact Found as to Whether Complainant Could Perform Position’s Essential Functions. The Commission reversed an AJ’s summary judgment grant on complainant’s claim that he was discriminated against and not provided a reasonable accommodation when the agency found him not to be qualified for a Foreign Service Officer position. The agency had determined that because complainant was HIV positive, he was medically restricted from world wide placement. The Commission found that genuine issues of material fact existed regarding whether the agency failed to make an individualized determination as to whether or not the complainant's being HIV positive precluded him from performing the essential functions of the position. The Commission found that the agency did not request any further information on his health status, skills, and abilities, nor did it contact complainant to discuss possible reasonable accommodations for his disability. While the agency proffered voluminous evidence and depositions about the difficulties individuals who are HIV positive may endure in various overseas posts, nothing in the record showed that the agency sufficiently assessed complainant's disability and associated medical issues to establish that he posed a direct threat to himself and others. Kyle W. Smith v. Department of State, EEOC Appeal No. 0120055349 (January 3, 2008).

Genuine Issue Found as to Whether Complainant’s Impairment was Substantially Limiting Despite Mitigating Measures. Complainant, who wears hearing aids, applied for a position as a security screener. He underwent a series of tests during the application process, but he was not selected. He claimed that he was discriminated against on the bases of age and disability when he was denied a reasonable accommodation, for his hearing loss, during the testing process. An AJ granted summary judgment for the agency on the grounds, inter alia, that complainant was not an individual with a disability because his hearing loss was fully mitigated by his hearing aids. On appeal, the Commission held that the AJ erred in granting summary judgment because there were genuine issues of material fact concerning whether complainant was substantially limited in hearing even while using hearing aides. On remand, the Commission instructed the AJ to determine whether the complainant meets the statutorily imposed qualification standard that security screeners have the ability “to hear and respond to the spoken voice and to audible alarms generated by screening equipment in an active checkpoint,” and to supplement the record if necessary for this determination. Thomas A. Chapman v. Department of Homeland Security, EEOC Appeal No. 0120051049 (August 7, 2008), request for reconsideration denied, EEOC Request No. 0520080805 (December 11, 2008).

Timeliness

EEO Contact Not Timely. The Commission found that a class agent failed to contact the EEO counselor in a timely manner. The record reflected that the class agent reasonably suspected discrimination when her attorney issued a press release expressing intent to take legal action, which was before she received the agency’s responses to her Freedom of Information Act (FOIA) request. Even assuming, arguendo, that the class agent did not have a reasonable suspicion of discrimination before she received the agency’s FOIA responses, the Commission found that her EEO contact was still untimely. Rejecting the complainant’s argument that the contact with the Washington Field Office should count as her EEO counselor contact, the Commission noted that the complainant was represented by an attorney, had previously initiated the EEO complaint process by appropriately contacting a counselor in two other claims, and waited 11 days after being informed of her error before contacting the appropriate official. Dena M. Briscoe v. United States Postal Service, EEOC Appeal No. 0120054527 (October 4, 2007).

Teenager’s EEO Contact Found to Be Timely Under Equitable Tolling Doctrine. The Commission reversed the agency’s dismissal of an EEO complaint filed by a seventeen-year-old high school student, who alleged she was sexually harassed and assaulted by a male co-worker while she was working as a temporary employee. The agency had dismissed the complaint for untimely EEO counselor contact, asserting that complainant did not contact a counselor until two-and-a-half months after she resigned from the agency, thus missing the 45-day required time limitation. The Commission found that, under the circumstances of this case, equitable tolling of the limitation period was appropriate in light of the fact that complainant was a minor at the time of the incidents in question. While the agency argued that complainant received training related to EEO time frames during her orientation, the Commission was not convinced that, as a minor, she understood the full magnitude of such timeframes or even the events that transpired. Moreover, there was no indication that complainant’s parents, who were her legal guardians, had any knowledge of the time frames for EEO processing. The record further showed that complainant sought EEO counseling within 45 days of her parents’ learning of the alleged sexual harassment. The agency was ordered to process complainant’s claim of hostile work environment/sexual harassment, as well as a claim of constructive discharge, as she asserted that she was forced to leave the agency, because of the alleged sexual harassment, before the end of her employment period. Keila A. Siufanua v. Department of the Army, EEOC Appeal No. 0120081802 (May 15, 2008).

Supreme Court Decisions

Retaliation Prohibited Under the ADEA. Following the denial of a transfer, complainant, then 45 years of age, filed a formal complaint of age discrimination under the ADEA. Subsequently, complainant alleged that, as a result of filing the complaint, she was subjected to various forms of retaliation, including being harassed and having her work hours reduced. Complainant filed a civil action, claiming that the agency retaliated against her for filing a complaint of age discrimination. The United States Postal Service (USPS) opposed the retaliation claim by arguing that 29 U.S.C. § 633a(a), the ADEA provision covering federal employees, does not prohibit retaliation because, unlike the private sector ADEA prohibitions, it does not explicitly refer to retaliation. The Supreme Court disagreed, finding that the broader language used in the federal sector prohibition implicated retaliation. It explained that the language in the federal sector prohibition was equivalent to two other statutes, § 1982 and Title IX of the Civil Rights Act, where the Court has already found an implied prohibition against retaliation.

Finally, the Supreme Court considered whether the government waived sovereign immunity for retaliation claims in addition to age claims under the ADEA. While the language of ADEA § 633a(c) limits the waiver of sovereign immunity to matters prohibited by the federal sector prohibition, this waiver includes retaliation because the Court finds the prohibition against retaliation in the federal sector prohibition itself, not borrowed from the private sector anti-retaliation provisions. Gomez-Perez v. Potter, 128 S.Ct. 1931 (2008).

Age Discrimination – Disparate Impact. The employer instituted an involuntary reduction in force to reduce its workforce by 31 employees. In order to select workers for layoff, managers rated their employees on three factors: performance, flexibility, and critical skills. The scores were added together, along with points for years of service, and those with the lowest scores were let go. Of the 31 employees identified for layoff, 30 were over 40 years of age. Plaintiffs filed suit raising both disparate treatment and disparate impact theories of discrimination under the ADEA. A jury rejected the plaintiffs’ disparate treatment claims, but found for the plaintiffs on their disparate impact claim. The Court of Appeals reversed the plaintiffs’ verdict on the disparate impact claim, finding that the plaintiffs have the burden to prove that the employer’s neutral policy was unreasonable. The plaintiffs petitioned the Supreme Court, arguing that the “reasonable factor other than age” is a defense for the defendant to prove.

The Supreme Court held that an employer defending a disparate impact claim under the ADEA bears both the burden of production and the burden of persuasion for the reasonable factor other than age defense. The Court initially noted that the text and structure of the ADEA indicate that the reasonable factor other than age provision creates an affirmative defense for which the burden of persuasion falls on the employer. The Court noted that it is a longstanding practice that the party claiming the benefits of an exemption, in this case the employer, bears the burden of production and the burden of persuasion in raising and proving an affirmative defense. The Court rejected the employer’s argument that the reasonable factor other than age clause should be read as a mere elaboration on an element of liability. Since the “reasonable factor other than age” provision has no corollary in Title VII, the Court found that the burden shifting framework applied to Title VII disparate impact claims does not apply to the ADEA “reasonable factor other than age” statutory defense. Meacham, et al. v. Knolls Atomic Power Laboratory, 128 S.Ct. 2395 (2008).