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The DIGEST Of Equal Employment Opportunity Law

Volume XVI, No.2

Office of Federal Operations

Spring Quarter 2005


Inside

Selected EEOC Decisions on:

Article:

Recent Findings of Race & National Origin Discrimination


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

Digest Staff

Editor: Arnold Rubin

Writers: Robyn Dupont, Arnold Rubin, Gerard Thomson

Available in accessible formats for persons with disabilities. The Digest is available online through EEOC's homepage at http://www.eeoc.gov/federal/digest.html. If you wish to receive a copy in print, you may send a request, in writing, to Arnold Rubin, EEOC, Office of Federal Operations, 1801 L Street, N.W., Washington, D.C. 20507.


SELECTED EEOC DECISIONS

Attorney’s Fees

Across-the-Board Reduction Warranted. Complainant prevailed on one of three claims and the AJ found that the three claims involved different "core" facts. The AJ determined that the award of attorney’s fees should be limited only to the claim on which complainant prevailed. On appeal, the Commission agreed and found that the AJ properly made an across-the-board reduction of 50% of the award of attorney’s fees requested by complainant. In addition, because complainant was successful in the appeal, EEOC found that he was entitled to an additional award of attorney’s fees. Mehta v. Department of Housing and Urban Affairs, EEOC Appeal No. 01A32842 (September 28, 2004), request to reconsider denied, EEOC Request No. 05A50159 (December 13, 2004).

Compensatory Damages

Compensatory Damages Defined and Explained. The Commission discussed complainant’s entitlement to compensatory damages. In doing so, the Commission defined the types of compensatory damages available to a prevailing complainant. By way of background, EEOC noted as follows. In its initial final agency decision (FAD), the agency found that complainant had been discriminated against on the basis of physical disability when it terminated him on July 20, 1999. Complainant then claimed compensatory damages in the amount of $206,223.40, $100,000.00 of which was for nonpecuniary losses; the remainder in pecuniary losses (including $78,723.40 for past pecuniary losses). The FAD noted complainant’s claim that he relocated from Arkansas to Illinois as a result of the termination. In support of his monetary claims, complainant provided affidavits, evidence of medical expenses and insurance premium costs during the period after his termination, relocation expenses including moving costs, costs related to his nursing license, and evidence of future medical expenses.

In its decision, the Commission stated that compensatory damages may be awarded for past pecuniary losses, future pecuniary losses, and nonpecuniary losses that are directly or proximately caused by the agency’s discriminatory conduct. Pecuniary losses are out-of-pocket quantifiable expenses, including medical expenses. Past pecuniary losses are incurred prior to the date of resolution of the damage claim. Past pecuniary damages are not included in the $300,000.00 statutory cap. Future pecuniary damages are losses which are likely to occur after the litigation is resolved, such as future medical expenses. Nonpecuniary losses are not precisely quantifiable, including emotional pain and loss of health. Compensatory damages are limited to the amount necessary to compensate an injured party for actual harm caused by the agency’s discriminatory action, even if the harm is intangible. Compensatory damages should be considered in light of the extent, nature, and severity of the harm endured.

Complainant made a claim for moving expenses. The Commission found that complainant’s move to Illinois from Arkansas was due to his desire to live near his father, and therefore the expenses were denied.

As for future pecuniary damages, the Commission found that, based on his treating physician’s diagnosis, complainant was entitled to $10,000.00 for future psychiatric expenses related to his PTSD, and $750.00 in medication costs.

Finally, with regard to nonpecuniary damages, after considering the severity and duration of the complainant’s emotional distress, the Commission found that $25.000.00 was an appropriate amount since complainant had submitted sufficient objective evidence to establish that he had persistent emotional harm attributable to his discriminatory termination, including PTSD. EEOC noted that the award did not include damages allegedly caused by the stress of participating in the EEO process. Howen v. Department of Veterans Affairs, EEOC Appeal No. 01A42618 (December 13, 2004).

EEO Process

Dissatisfaction With the Processing of a Previously-Filed Complaint May Not Be the Subject of an Independent EEO Complaint. The Commission determined that complainant’s claim concerned the agency’s purported unfair dismissal of a previously-filed complaint. The Commission stated that the proper recourse for complainant was to appeal the agency’s alleged improper dismissal of his prior complaint. Tolan v. Department of the Army, EEOC Appeal No. 01A50918 (January 26, 2005).

Findings of Discrimination

–Under the ADEA–

Direct Evidence of Age Discrimination Found; Mixed Motive Defense Rejected. In this nonselection case, the Commission found that management officials influential to the selections at issue made statements indicating that age was a motivating factor in the decisions not to select complainant. The Commission explained that “direct evidence” may be any written or verbal policy or statement made by a management official that, on its face, demonstrated a bias against a protected class and was linked to the adverse action that was being challenged. A link between the evidence of bias and the action at issue could be shown if the biased statements were made by the decision maker or one who was involved in the decision, at or around the time the decision was made, even if the biased remarks were not specifically related to the particular employment decision at issue. When there is direct evidence of unlawful discrimination, the circumstantial evidence analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), does not apply.

Complainant, 59, a GS-13 Missile Engineer, was referred as a qualified candidate for three GS-14 positions. The Commission found that senior management considered age an important factor in employment decisions, including promotions, as part of their “succession planning” for the future of the agency, and conveyed such sentiment to middle and lower management. For example, the highest-ranking official on-site at complainant’s work facility stated that the agency sought specifically to hire younger employees, and that younger people were more intelligent and technologically savvy than those in older age groups.

The Commission rejected the agency’s argument that it was engaged in legitimate "succession planning." EEOC found that, instead of developing a succession program linked to the agency’s strategic plan with the aim of developing key competencies in employees to meet evolving missions and train future leaders, the management officials responsible for the selections at issue simplistically adopted the view that succession planning meant that younger employees were better than older employees and used age as a barrier in promotion decisions.

The Commission determined that this was a "mixed motive" case, i.e., where the employer’s decision is founded on both lawful and unlawful reasons. Prior to the Civil Rights Act of 1991 (CRA), an employer could avoid liability in a mixed motive case as set forth in the Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 249, 258 (1989), if it could show that it would have made the same decision even absent the unlawful factor. However, the Commission noted that the CRA, which over-ruled that part of Price Waterhouse, did not amend the Age Discrimination in Employment Act (ADEA) and, therefore, in the instant case, the agency could avoid liability if it could establish that it would have made the same decision even absent discrimination.

The Commission found that, while the agency could avoid liability for two of the three selections, it could not avoid liability for the third. The Commission found a lack of objective evidence and support for the non-selection. EEOC also found that the management official who espoused a policy of hiring and promoting "younger blood" was the selecting official. Noting that compensatory damages and attorney’s fees are not available under the ADEA, the Commission found that the agency had discriminated against complainant on the basis of age and ordered the agency to retroactively promote complainant to a GS-14 Supervisory General Engineer position, with any applicable step increases and back pay with interest and other benefits. The Commission also directed the agency to consider disciplining the management officials identified as being responsible for discriminating against complaint. Tellez v. Department of the Army, EEOC Request No. 05A41133 (March 18, 2005).

–Under Title VII–

Sex Discrimination. Complainant, a GS-6 Transportation Assistant, filed a formal complaint on several bases, including gender, when she was not selected for the position of Transportation Operations Specialist. Subsequent to a hearing, the AJ found gender-based discrimination. In so concluding, the AJ found that the agency’s articulated legitimate, nondiscriminatory reasons were a pretext for discrimination. In reaching this conclusion, the AJ found that selecting official (SO) was not credible because his statements to support his selection were inconsistent and contradictory. In his affidavit, SO testified that the selectee’s qualifications were determinative. However, at the hearing, SO testified that he chose the selectee because he was entitled to priority consideration. SO had specifically denied that priority consideration was a factor in his earlier affidavit testimony. The agency’s Final Order rejected the AJ’s finding of discrimination.

In reversing the agency’s Final Order, the Commission noted the AJ’s determination that complainant possessed all the qualifications for the position at issue from her years of working within the organization and that this called into question the SO’s statement that the selectee, a male candidate from outside the organization, was better qualified. As part of the relief awarded, the Commission ordered the agency to retroactively promote complainant to the position of Transportation Operations Specialist GS-2150-7. Byrd v. General Services Administration, EEOC Appeal No. 07A30123 (September 30, 2004).

Race and Sex Discrimination. The Commission affirmed the AJ’s finding that complainant was subjected to discrimination on the bases of her race (African-American) and sex, with regard to the processing and approval of her application for telecommuting and her request for advanced sick leave. The Commission noted that, while complainant was asked to provide additional information concerning child care and told that she would have to submit to a home inspection, a White male employee who also had children at home was not asked to do so. Further, the AJ found that the agency admitted that it did not grant advanced sick leave to pregnant women without medical documentation specifying a serious medical condition, while it made no such requirement for male employees requesting advanced sick leave. The agency was ordered to pay complainant $100,000.00 in compensatory damages, expunge any derogatory materials relating to complainant’s performance, and pay attorney’s fees and costs. Ellis-Balone v. Department of Energy, EEOC Appeal No. 07A30125 (December 29, 2004).

Religious Accommodation Discrimination. The Commission found that the agency failed to accommodate complainant’s religion (Catholic) when it denied his request for leave to observe Good Friday. The agency asserted that complainant failed to timely submit his leave request and that 20 percent of the employees in complainant’s unit were scheduled for leave on that day. EEOC, however, stated that the agency did not show that it had attempted to accommodate complainant’s request. Specifically, there was no evidence that the agency pursued the possibility that another employee might volunteer to substitute for complainant or to swap leave days, or that complainant might use compensatory time to make up for the time lost in observance of his religious practices. As relief, the agency was ordered to rescind the AWOL charge for the day at issue and charge complainant with use of annual leave, in addition to providing complainant with back pay, interest and benefits. Cirami v. United States Postal Service, EEOC Appeal No. 01A33035 (January 13, 2005).

Retaliation. Following a hearing, an AJ determined that the agency had retaliated against complainant for prior protected activity when his supervisor cut the lock on his locker and searched the locker’s contents. The AJ ordered the agency to pay $1,500.00 in non-pecuniary compensatory damages, as well as reasonable attorney’s fees and costs. In its Final Order, the agency declined to implement the AJ’s decision. On appeal, the Commission reversed the Final Order, finding substantial evidence to support the AJ’s findings of fact. The Commission also found that the AJ had applied the appropriate regulations, policies and laws, and ordered the agency to consider disciplining the responsible management officials. Markley v. United States Postal Service, EEOC Appeal No. 07A40083 (September 9, 2004).

Sexual Harassment - Hostile Work Environment. Complainant was subjected to unlawful sexual harassment by her supervisor when he gave her a hug and kiss; blew her a kiss; patted her neck; rubbed her hand; and made such comments as, "I still love you," and "I heard you were crazy about me." After the incident in which the supervisor hugged and kissed complainant, she (complainant) received notice of a 28-day suspension. Although the suspension was expunged, the Commission found that it was evidence of the supervisor’s intent to take a tangible employment action against complainant when she failed to respond positively to the supervisor’s sexual advances. An employer is strictly liable for a supervisor’s harassment if it culminates in a tangible employment action. In this case, the Commission found that the agency acted with insufficient dispatch in ending a situation that it knew was inappropriate. Accordingly, the Commission remanded the matter for a supplemental investigation on the issue of relief, including compensatory damages. Cruz v. United States Postal Service, EEOC Appeal No. 01A34736 (December 8, 2004).

Mootness

Complaint not Moot Where Compensatory Damages are Requested. A complaint may not be dismissed as moot where, as here, a complainant has requested compensatory damages. An agency is obligated to request from complainant objective evidence of such damages and address the issue of compensatory damages. Anderson v. Department of the Air Force, EEOC Appeal No. 01A44943 (December 13, 2004).

Remedies

Retroactive Promotion as Make-Whole Relief. Complainant, a GS-13 Staff Accountant, filed a formal EEO complaint on November 12, 1998, claiming discrimination on a number of bases including race and national origin (Indian), and disability (lower body paralysis), in connection with several nonselections. An AJ found discrimination in one of the challenged non-selections. The AJ ordered the agency to place complainant in the position, or a similar position at the respective grade and step complainant would have attained but for the discrimination. The AJ also ordered the agency to provide complainant back pay with interest from July 8, 1998.

The agency issued a final order purporting to fully implement the AJ’s order, including the ordered remedies. However, the agency determined that when complainant applied for the position, he only qualified at the GS-13 level. The agency determined that complainant, who was already a GS-13, would simply have retained his current grade and step. Further, the agency indicated that once the position was filled, it was decided that higher grade work was not available. Thus, no employees in similar positions were ever promoted to a GS-14 or a GS-15 through career ladder advancement, so that he was not entitled to back pay.

Further, the agency noted that the function of the position was eliminated in March 2002, and those positions were redeployed to a variety of places and positions of the same grade, while others were placed in Operations Specialist positions, which were “single graded” with no career ladder promotion potential. Therefore, the agency concluded that if complainant had been selected for the position he would now be an Operations Specialist at the GS-13 level.

On appeal, the Commission found that the agency failed to show that complainant was not entitled to a GS-14 position as a remedy in this case. Further, EEOC found that the selectee for the position was promoted from GS-13 to GS-14 when selected, and that nearly all of the selectees for the position were promoted as a result of their selection, mostly to the GS-14 and GS-15 levels. The Commission disagreed with the agency’s argument that placing complainant in a GS-14 position as a remedy would result in greater than make-whole relief. The Commission also disagreed with the agency’s contention that complainant’s eventual promotion to a GS-15 was speculative. EEOC found that the position contained a career ladder to this grade, and there was no evidence to suggest that complainant would not have been fully successful at the GS-14 level or would not have qualified for the GS-15 level upon completing any necessary training. The Commission found no documentary evidence to demonstrate how the GS-level qualifications were conducted for the position.

The Commission stated that it was incumbent upon the agency to make provision for the relief mandated by Title VII and the Rehabilitation Act in such a way as to effect restitution for the discrimination to which complainant had been subjected. Accordingly, EEOC ordered the agency to promote complainant retroactively to July 8, 1998, to an appropriate GS-14 position, with back pay and interest; and promote him retroactively to July 8, 1999, also with back pay and interest, to a GS-15 level. Mehta v. Department of Housing and Urban Development, EEOC Appeal No. 01A32842 (September 28, 2004), request for reconsideration denied, EEOC Request No. 05A50159 (December 13, 2004). Cf. Subia v. Department of Homeland Security, EEOC Appeal No. 01A41442 (June 22, 2004) (complainant entitled to the equitable remedy of front pay until the time the agency was able to offer complainant the position it had improperly denied him).

Requests for Reconsideration

Request for Reconsideration is not a Second Appeal. In her request for reconsideration, complainant contended that the Commission improperly denied her compensation for the tax impact of the back pay awarded to her as a lump sum. In the previous decision, the Commission denied this sum because complainant failed to provide tax documentation that specified the added liability she suffered because of the lump sum payment. In her request, complainant contended that the Commission’s denial was unfair given that the payment of back wages was not made to complainant until April 14, 2003, and the tax impact could not be known until the filing of complainant’s 2003 tax return. Complainant argued that the precise amount was not available at the time of her appeal. In denying complainant’s request, the Commission noted that a request for reconsideration is not a second appeal to EEOC. The Commission noted that complainant filed her appeal on April 12, 2004. Assuming, as complainant argued, that the amount of tax impact was not available until she filed her 2003 tax return, the Commission found that complainant could still have attached this information to her brief in support of her appeal, within 30 days of filing her appeal under EEOC’s regulations, and provided an explanation as to why the information was previously unavailable. Flowers v. United States Postal Service, EEOC Request No. 05A50243 (January 11, 2005).

Settlement Agreements

Settlement of Age Claim Found Valid. In his appeal, complainant sought to have the Commission declare his settlement agreement with the agency void because it did not contain waiver language required by the Older Workers’ Benefit Protection Act (OWBPA), which amended the Age Discrimination in Employment Act of 1967 (ADEA).

The Commission declined to set aside the agreement and cited the following reasons for its decision: (1) the agreement specifically referred to complainant’s age claim; (2) he was represented by expert legal counsel; (3) there was no evidence that complainant did not have an opportunity to consult with his attorney, or was not given a reasonable period of time to consider the provisions of the settlement agreement; (4) no time limit was placed on complainant; and (5) complainant received valuable consideration pursuant to the terms of the settlement agreement. Thus, complainant’s decision to enter into the settlement agreement was both knowing and voluntary under OWBPA. Black v. Department of Agriculture, EEOC Appeal No. 01A42294 (January 11, 2005).

Agreement Fails for Lack of Consideration. Complainant and the agency entered into a settlement providing priority consideration for certain positions. The Commission found that, upon cancellation of a vacancy announcement, and the likelihood that such positions would be contracted out, the agency effectively abolished its ability to give complainant priority consideration in exchange for withdrawal of his complaint as bargained for. The Commission noted that, when one party does not incur legal detriment, a settlement agreement will be set aside for lack of consideration. Accordingly, EEOC found the settlement agreement to be void for lack of consideration and directed the agency to reinstate the complaint to the point at which processing ceased. Bradley v. Department of the Navy, EEOC Appeal No. 01A34814 (December 21, 2004).

Provision Renders Agreement Void for Lack of Consideration. Complainant and the agency entered into a settlement agreement which included various provisions requiring the agency to take action leading to complainant’s employment. The agreement, however, contained an additional provision conditioning the earlier actions on the approval of the Reasonable Accommodation Committee. The Commission found this latter provision rendered the agreement void. Specifically, the provision required that the initial actions concerning complainant’s employment were to take effect only if the Committee approved complainant’s commencing work. Thus, EEOC concluded that complainant received no consideration for withdrawing her complaint. Lampkins v. Department of Health and Human Services, EEOC Appeal No. 01A34016 (December 14, 2004).

No Meeting of the Minds: Settlement Agreement Void. Complainant and the agency entered into a settlement agreement which provided that, in exchange for withdrawing her complaint, complainant would receive her 35-year service pin and, upon complainant’s submission of the paperwork necessary for her retirement, would be reimbursed for “any/all straight time compensation” lost. On appeal, the Commission found that the settlement agreement was void. The record showed that the parties had a fundamental misunderstanding of what the agreement entailed. Specifically, complainant believed that she would be compensated for the period of time she was off from work on sick leave, while the agency asserted that she had already been compensated for that period. The Commission noted that the agency’s version of the agreement would mean that complainant gave up the right to pursue her EEO claim in exchange for only a pin; yet, if complainant’s version was correct, the agency would have been improperly using the term “straight time” to include sick leave. Given that the parties’ respective understanding of the agreement resulted in mutually exclusive outcomes, the agreement was void. Sizemore v. United States Postal Service, EEOC Appeal No. 01A42562 (December 8, 2004).

Breach Found in Maintenance of Disciplinary Documentation. The Commission found that the agency breached a provision of the settlement agreement requiring it to remove a letter of suspension and a letter of warning if complainant met certain conditions. While the record showed that the letters were removed from complainant’s official personnel file (OPF), the letters were maintained in two other files. The Commission noted that the settlement agreement did not specify that the agency would remove the letters only from the OPF and that maintaining the letters as part of other records violated the terms of the agreement. The Commission ordered the agency to remove the letters from the two files in question. Jaffe v. United States Postal Service, EEOC Appeal No. 01A43907 (November 17, 2004).

Breach Found in Reassignment. The Commission found that the agency breached the provisions of the settlement agreement by reassigning complainant to another tour, other than the specified tour, less than one year after the agreement was executed. The Commission noted that there was no evidence that complainant had been reassigned because of operational needs or agency directives that had been unforeseen at the time the agreement was executed. Further, while the agency asserted that complainant failed to provide proper documentation to obtain approval for a permanent position on the original tour, the agency failed to submit any evidence to support its assertion. Hartman v. United States Postal Service, EEOC Appeal No. 01A45907 (December 16, 2004).

Stating a Claim

In the following decisions, the Commission found complainant’s claims failed to state a claim upon which relief could be awarded:

Phillips v. Department of Veterans Affairs, EEOC Appeal No. 01A44853 (November 1, 2004), request to reconsider denied, EEOC Request No. 05A50282 (January 6, 2005) (allegation of unfair reassignment fails to state a claim because no protected basis of discrimination was raised during EEO counseling, in the formal complaint, or even on appeal).

Santaniello v. United States Postal Service, EEOC Appeal No. 01A44476 (September 27, 2004) (no present injury to complainant - requirement to provide medical documentation for future absences related to approved Family Medical Leave Act (FMLA) in order to return to work, concerns speculative harm.

Klauzinski v. Department of Veterans Affairs, EEOC Appeal No. 01A43375 (October 18, 2004), request to reconsider denied, EEOC Request No. 05A50346 (January 13, 2005) (complaint that complainant was subjected to disability discrimination when she was not allowed discovery or additional witnesses by a Merit Systems Protection Board (MSPB) Administrative Judge (AJ) is a collateral attack on another proceeding and not actionable before the Commission).

Howard v. United States Postal Service, EEOC Appeal No. 01A50240 (January 11, 2005), request to reconsider denied, EEOC Request No. 05A50453 (February 15, 2005) (collateral attack on Office of Worker’s Compensation (OWCP) decision fails to state an EEO claim).

Copher v. United States Postal Service, EEOC Appeal No. 01A45053 (January 26, 2005), request to reconsider denied, EEOC Request No. 05A50571 (March 10, 2005) (pre-disciplinary interview does not involve harm to a term, condition or privilege of employment).

Kellum v. Department of Justice, EEOC Appeal No. 01A41403 (January 26, 2005) (claim of agency’s noncompliance with its own final order cannot be raised as a separate claim of discrimination; it must, instead, be raised in writing, in a timely manner, with the agency’s EEO Director).

Barnes, et al., v. United States Postal Service, EEOC Appeal No. 01A41498 (January 13, 2005) (retaliation based on union affiliation, as the sole basis of discrimination, without a nexus to EEO laws or process, is not cognizable).

In the following decisions, the Commission found complainant’s complaint stated a claim:

Egan v. Department of Homeland Security, EEOC Appeal No. 01A44155 (September 27, 2004) (allegation that complainant was subjected to reprisal in the form of a demotion and termination, because he discussed with the media the agency’s discriminatory hiring and promotion practices, states a cognizable claim).

McPherson v. Department of the Army, EEOC Appeal No. 01A50159 (January 6, 2005) (failure to upgrade position to a higher series).

Polanco v. United States Postal Service, EEOC Appeal No. 01A50205 (January 10, 2005) (claim that complainant was denied the opportunity to apply for a position is sufficient to render him aggrieved).

Krupp v. Department of Homeland Security, EEOC Appeal No. 01A45697 (December 2, 2004) (claim of unwelcome ongoing contact by co-worker in formerly consensual relationship, despite complaints to management, is sufficient to show remediable injury to term, condition, or privilege of complainant’s employment).

Pollard v. Department of Transportation, EEOC Appeal No. 01A44528 (December 21, 2004) (claim that supervisor informed co-worker that he knew how to handle people with complainant’s "condition" because he had two daughters who were Bipolar, was sufficient to state a claim under the Rehabilitation Act because information regarding the medical condition or history of any employee is confidential).

Miller v. Department of the Army, EEOC Appeal No. 01A44965 (November 29, 2004) (comment by supervisor that complainant would not be promoted and obstruction of desk audit were sufficient to state a claim of retaliation).

Sanchez v. Department of Health and Human Services, EEOC Appeal No. 01A50161 (January 10, 2005) (claim of denial of lateral transfer, based on national origin, states a claim).

Lebron v. United States Postal Service, EEOC Appeal No. 01A40593 (January 13, 2005) (claim that complainant was compelled to assume a position he no longer wanted, grounded on a number of EEO bases, states a claim).

Roach v. Department of Defense (Defense Finance & Accounting Service), EEOC Appeal No. 01A50373 (January 26, 2005) (claim that Letter of Warning was based on retaliation states a claim).

Timeliness

Untimely Appeal. Complainant failed to submit his appeal within 30 calendar days of his receipt of the final agency decision as required by regulation. The Commission rejected complainant’s assertion that the delay was caused by the agency’s failure to provide him with the appeal form, stating that such rationale did not justify extending the applicable limitation period. Carr v. Department of the Treasury, EEOC Appeal No. 01A44673 (November 17, 2004).

Untimely Petition for Attorney’s Fees. In the “Statement of Rights” provided in a prior request to reconsider, complainant was informed that a petition for attorney’s fees must be submitted to the agency “within thirty (30) calendar days of this decision becoming final.” However, complainant submitted his petition more than 75 days after the issuance of the request for reconsideration, and neither requested an extension or offered a reason to extend the time limitations. The Commission rejected, as specious and without merit, complainant’s arguments that the agency never requested that he submit a petition for attorney’s fees and that attorney’s fees could only be claimed after expiration of the 90-day period to file a civil action. The Commission noted that the onus is on the attorney claiming fees to file a petition in a timely manner. Further, EEOC also opined that counsel for complainant was an experienced attorney, who had appeared in many proceedings before the Commission, and should have been familiar with the time limits in its regulations. Chumley v. Department of Homeland Security (Customs and Border Protection), EEOC Appeal No. 01A34856 (September 27, 2004).

Untimely Request for Reconsideration. For timeliness purposes, the Commission presumes that a decision was received within five (5) calendar days after it was mailed. The agency was advised that it had thirty (30) calendar days after receipt of the previous decision to file its request for reconsideration. In this case, the agency’s request for reconsideration was dated after the appropriate time period, without any justification for an extension of the applicable time limit, and was, accordingly, dismissed. The previous decision remained the Commission’s final decision. Burton v. Office of Personnel Management, EEOC Request No. 05A50122 (December 21, 2004).

Timely EEO Counselor Contact By E-Mail. The Commission found that complainant timely initiated contact with an EEO Counselor, via e-mail, within 45 days of the alleged discriminatory incident. Complainant submitted a copy of an e-mail addressed to the EEO Counselor, which the Commission stated was competent evidence that she sought EEO counseling within the applicable limitation period. Pough v. Department of Transportation, EEOC Appeal No. 01A41671 (December 22, 2004). See Hill v. United States Postal Service, EEOC Appeal No. 01A42390 (December 17, 2004) (complainant not required to request “EEO pre-complaint paperwork” to initiate EEO counseling in a timely manner).

Timely Hearing Request. Complainant’s attorney submitted documentary evidence, including a letter and hearing request, which had been timely dated, to the agency. The agency failed to raise any arguments to discredit the evidence, including contemporaneous letters sent to the agency by complainant’s attorney, setting forth in great detail the steps he had taken to locate the lost mail, once he was notified that the agency had never received the hearing request. The Commission found that complainant had met her burden to show that she had timely requested a hearing, vacated the agency’s decision on the merits and remanded the matter for a hearing before an EEOC AJ. Sickler v. Department of Veterans Affairs, EEOC Appeal No. 01A45717 (December 22, 2004).

Military Duty Tolled Time for EEO Contact. Complainant’s deployment on active duty with the National Guard was sufficient to toll the limitation period for contacting an EEO Counselor. The Commission noted that, shortly after suspecting that he had been discriminated against with regard to his bid assignment, complainant was deployed overseas with his National Guard unit. Within two weeks of his return, complainant initiated contact with an EEO Counselor. The Commission found complainant’s claim to be timely, stating that the limitation period should be tolled during the period of deployment. Ulmer v. United States Postal Service, EEOC Appeal No. 01A45073 (November 16, 2004).

Complaint Slipped Under Agency’s Office of Civil Rights’ Door After Normal Business Hours Timely Filed. Complainant received the Notice of Right to File a Formal Complaint, by certified mail on March 20, 2004. The notice advised complainant that she must file her formal complainant within 15 days of receipt of the notice, which was April 5, 2004 (the 15th day fell on April 4, a Sunday, and by regulation the time period was extended to the next business day). Complainant’s complaint was placed under the Office of Civil Rights’ door after business hours on April 5, 2004, and was found by the Office staff on the next morning on April 6, 2004. The agency dismissed the complaint as being filed beyond the 15-day limitation period. The Commission found the complaint timely. Robinson v. Department of Commerce (Patent and Trademark Office), EEOC Appeal No. 01A45894 (December 8, 2004).

Agency Information Misleading: Formal Complaint Timely. Complainant initially mailed his complaint to the agency’s Regional Office, which was listed on an EEO poster where he worked. On appeal, he submitted a photograph of the poster and copy of the accompanying text. The Office was not the one listed on the notice of the right to file a complaint. Rather than forwarding the complaint to the correct office, the agency returned it to complainant with the correct address. Complainant sent his complaint to the correct office the following day. The Commission noted that the agency maintained an EEO poster at complainant’s work place that contained erroneous and misleading information and failed to indicate whether it had a procedure in place for returning complaints received at the Regional Office such that they could have been resubmitted in a timely manner. It therefore exercised its discretion to toll the running of the 15-day limitation period, and remanded the complaint for processing. Martinez v. Department of Transportation, EEOC Appeal No. 01A41881 (December 21, 2004).

Complaint Timely: Agency on Notice that Complainant was Represented by an Attorney. Complainant’s formal complaint was submitted within 15 days of receipt of the Notice of her right to file a complaint by her attorney and, as such, was timely. The Commission rejected the agency’s argument that complainant did not designate the attorney as her representative until she filed the complaint. The Commission noted that the attorney had attended complainant’s prior mediation session and had signed an "Agreement to Mediate" form as the attorney of record. Therefore, the Commission found, the agency had notice that the attorney was complainant’s designated representative. Salcedo v. United States Postal Service, EEOC Request No. 05A40994 (December 17, 2004).

Complaint Timely: Complainant Rebuts Presumption of Constructive Receipt. Complainant failed to submit her formal complaint within 15 days of receipt of the Notice of Right to File a Formal Complaint at her work place, i.e., the address designated by complainant as her address of record. Complainant stated that she was on detail at the time in question and did not actually receive the Notice until she returned to the office. The Commission found complainant’s explanation sufficient to rebut the presumption of constructive receipt, stating that complainant filed her complaint within 15 days of her return from detail. Regis v. Department of Homeland Security, EEOC Appeal No. 01A44570 (November 16, 2004).

Untimely Formal Complaint: Complainant Fails to Rebut Presumption of Constructive Receipt. Complainant’s formal complaint was submitted more than 15 days after the Notice of Right to File a Formal Complaint was received at her home address. Complainant asserted that her son, who signed for the Notice, did not live at her home and that the two were estranged, having only sporadic contact. The Commission rejected complainant’s assertion, stating that complainant did not claim that her son was not of suitable age or discretion to receive the Notice. Accordingly, the Commission found that complainant’s relationship with her son was insufficient to rebut the presumption of constructive receipt of the Notice by complainant. Woods v. Department of Veterans Affairs, EEOC Appeal No. 01A44731 (November 24, 2004).

A CASE UPDATE:
RECENT FINDINGS OF NATIONAL ORIGIN AND RACE DISCRIMINATION

In the following recently issued cases the Commission found that the complainant was subjected to race and/or national origin discrimination.

Cases Involving Harassment

The complainant, in Nicholas v. Department of Agriculture, EEOC Appeal No. 01A43603 (November 4, 2004), alleged that she was subjected to harassment based on her race (African-American) when a co.worker made racially charged comments to her. The Commission found that, although only made on one day, the nature of the comments, which included several racial slurs, was sufficiently severe to render complainant’s work environment hostile. Nevertheless, the agency took prompt and appropriate remedial action to end the harassment once it was reported. Specifically, management immediately moved the individual away from complainant’s work area and counseled him about his conduct. In addition, the agency subsequently issued two letters to the employee barring him from any contact with complainant, and disciplined him by issuing a letter of warning after an agency investigation of the matter. Finally, there was no evidence that the conduct recurred after management took the actions cited. Thus, while complainant was subjected to racial harassment, the agency was not liable because it took prompt and appropriate remedial action and the incidents did not recur.

In Menard v. Department of Veterans Affairs, EEOC Appeal No. 07A40004 (September 29, 2004), request for reconsideration denied, EEOC Request No. 05A50175 (January 18, 2005), the Commission affirmed the AJ’s finding that complainant had been subjected to racial harassment and constructive discharge. Complainant, a registered nurse, alleged that she was subjected to harassment based on her race (Caucasian), which ultimately led to her constructive discharge. Following a hearing, the AJ found that complainant established a prima facie case of harassment over the course of approximately two and one-half years when African.American Health Technicians refused to comply with her orders while following the orders of African.American nurses. In addition, one Health Technician told complainant that she would not take orders from a White nurse, and Technicians screamed, banged on doors, blocked complainant’s exit and called security when complainant asked for assistance. The AJ found that the conduct was threatening and interfered with complainant’s work in that she needed assistance from the Technicians in order to accomplish her job. In addition, the harassment ultimately led to proposed disciplinary action and complainant’s constructive discharge. Complainant reported the harassment to her supervisors on two occasions, but they took no action to resolve the problem. The Commission noted that the agency’s failure to call any of the Technicians or other witnesses to testify as to the daily interactions with complainant cast doubt on the supervisor’s assertion that complainant caused the confrontations. The agency was ordered to reinstate complainant to a Registered Nurse position in a different work area, with back pay and benefits, pay complainant $10,000 in compensatory damages, and provide training to complainant’s former unit.

In Calahan v. Department of Veterans Affairs, EEOC Appeal No. 07A40031 (September 22, 2004), complainant, a Medical Instrument Technician, filed a formal complainant alleging that she was subjected to harassment on the basis of her race (African-American). The AJ held a hearing in the case, and determined that complainant was in fact subjected to racial harassment. The record showed that a co.worker made racial remarks toward complainant and other African.American employees, and generally did not respect complainant’s supervisory authority. The AJ noted that, despite complainant’s satisfactory performance, the conflicts with the co.worker forced her to give up her supervisory position, at which time the co.worker was chosen to replace her. Notwithstanding the agency’s assertion that complainant suffered from performance and supervisory problems, she was not afforded the training opportunities that were given to the co.worker which would have enabled complainant to continue supervising the department. Further, complainant’s supervisors failed to address her concerns regarding the co.worker’s disrespectful conduct and instead blamed complainant for problems in the department. As relief, the Commission ordered the agency to promote complainant to a Supervisory Medical Instrument Technician position, with back pay and benefits, and pay complainant $40,775 in compensatory damages.

The Commission, in Wilson v. Department of Veterans Affairs, EEOC Appeal No. 01A30907 (February 23, 2004), found that complainant was subjected to racial harassment. According to the record, one of complainant’s co.workers made racially derogatory comments to complainant (African-American), and asked if he bleached his skin. This incident was confirmed by two employees who were present at the time. In addition, the co.worker was later heard using a racial slur. A second co.worker yelled obscenities at complainant, and threatened him. Complainant’s supervisor did not intervene in the matter. When questioned about the incident by another supervisor the following day, the co.worker again yelled at and threatened complainant. The Commission found that complainant was subjected to unwelcome conduct related to his race, which caused a hostile work environment. The Commission noted that a limited number of highly offensive slurs or comments about an individual’s race may support a finding of discrimination. Further, the agency was liable for the harassment, because the first co.worker had supervisory authority over complainant as he was the team leader at the time of the incident, and the agency failed to show that it had an effective policy against harassment. The agency was ordered to conduct a supplemental investigation with regard to compensatory damages, and conduct training for the responsible officials.

In Raney v. Department of Veterans Affairs, EEOC Appeal No. 01A22635 (January 7, 2003), complainant, a Physician and Chief of Urology at an agency medical center, claimed that he was harassed by a subordinate employee because of his national origin (Iranian). The Commission found that the subordinate violated a Notice of Restricted Contact, and repeatedly disregarded instructions from management not to enter certain areas of the hospital and to avoid contact with complainant. The record showed that the employee disliked “foreign” doctors, and made several statements expressing that dislike. The employee also made numerous threatening references to his expertise as a marksman, and responded to criticism from complainant by getting angry, slamming doors, and making gestures in the shape of a pistol or gun. The agency’s Board of Investigation had previously concluded that the employee purposely fueled the conflict with complainant once he became aware that complainant was afraid of him. Nevertheless, management took no concrete action to address the problem. The Commission found that, given the history between complainant and the employee, the employee’s repeated presence in areas near complainant’s work area created a hostile environment. In addition, the employee was reassigned to a clinic where complainant worked twice each week. The Commission stated that the agency improperly permitted the employee to work in proximity to complainant despite his history of hostility, and the agency’s failure to take more stringent action led to the additional acts of harassment. The agency was ordered to conduct a supplemental investigation with regard to compensatory damages, and to pay attorney’s fees.

Discrimination Regarding Performance Evaluations and Awards

In Griffin v. Department of the Air Force, EEOC Appeal No. 07A30045 (January 20, 2004), the Commission affirmed the AJ’s finding that complainant was subjected to race and reprisal discrimination with regard to two performance appraisals. Complainant alleged that she was discriminated against on the basis of her race (African-American) and in reprisal for prior EEO activity when she received a “fully successful” rating in May 2000, and an “excellent” rating in May 2001. The AJ found direct evidence of race discrimination. Specifically witnesses testified that complainant’s second level supervisor stated that he hired complainant because of her race, commented that a Black employee had different needs than a White employee, and indicated that he treated complainant and another Black employee differently for that reason. Further, the reasons given for complainant’s performance ratings were not credible. While management cited concerns about complainant’s technical skills, other employees who received the same comments on their evaluations received higher overall ratings, and complainant received “above fully successful” or “far above fully successful” ratings on all technical elements. The agency was ordered to change the rating on complainant’s 1999 to 2000 evaluation to “excellent” with a cash award, change the total score on the 2000 to 2001 rating to 74, pay her $40,000 in damages, and restore 80 hours of annual leave.

In Wimbley-Osborne v. Department of Defense, EEOC Appeal No. 07A20098 (June 12, 2003), complainant, a Procurement Technician, did not receive a performance award in 1999. Her supervisor stated that there was no evidence complainant performed above and beyond her job criteria during the rating year. Complainant alleged that she was subjected to discrimination based on her race (African-American) and color (Black). Following a hearing, the AJ determined that the supervisor’s stated reason was a pretext for race and color discrimination. Specifically, the record contained sufficient evidence to show that complainant’s performance was in fact above and beyond her job criteria, and that her supervisor was aware of that fact. Witnesses verified that complainant, a GS.6 level employee, performed GS.11 level work which was of excellent quality. Further, employees attended weekly staff meetings during which they were given credit for the work they were doing, making it likely that complainant’s supervisor was aware that she was performing higher level work. Thus, the Commission concluded that while complainant met the criteria for a performance award, that is she was performing work above and beyond her job criteria, she did not receive an award while White employees did receive awards, and the agency failed to offer a credible, non.discriminatory reason for the disparity. The agency was ordered to give complainant a $500 performance award for the 1999 rating period, with interest.

In Mature v. USPS, EEOC Appeal No. 07A20065 (March 17, 2003), the Commission affirmed the AJ’s finding that complainant was discriminated against on the basis of his race when he did not receive timely 30- or 60-day evaluations of his performance, was given an unfair evaluation, and removed during his probationary period. Complainant, a Part.time Flexible Mail Carrier, was hired in January 1998, and was scheduled to receive 30- and 60-day evaluations during his probationary period. Complainant stated that he did not receive a 30-day evaluation, and received the 60-day evaluation, which included “unsatisfactory” grades in three areas, in an untimely manner. Complainant was subsequently terminated because he failed to report an injury to his hand until two days after the injury occurred, and alleged discrimination based upon his race (Caucasian). Following a hearing, an AJ determined that other similarly situated employees received 30- and 60-day evaluations in a timely manner. The AJ noted that, despite the agency’s assertion that complainant’s supervisor could not complete his 30-day evaluation due to time constraints, the record showed that the only difference between complainant and the comparatives was their race. In addition, while the supervisor noted that the comparatives received their evaluations before complainant because they were hired first, the record showed that in fact complainant was hired prior to the comparative employees. With regard to complainant’s termination, the AJ found that the supervisor’s stated reason for the action, that complainant refused a direct order and failed to report his injury, contradicted the evidence of record. For example, while the supervisor stated that complainant’s termination was based upon reports from the 204.B supervisor, that official indicated that he had no problems with complainant’s work. The agency was ordered to reinstate complainant to a Part-time Flexible Mailhandler position, with back pay and benefits, purge all documentation related to the separation from his record, and pay him $10,000 in damages plus attorney’s fees.

Disciplinary Actions and Termination

In Curtis v. USPS, EEOC Appeal No. 07A30083 (May 13, 2004), the Commission found that complainant was subjected to race and sex discrimination when he was ordered to clock out and go home. According to the record, complainant was involved in a confrontation with a co.worker, whom he alleged pointed a finger in his face. Following the confrontation, complainant was ordered to clock out and go home. Complainant alleged that the incident was discriminatory due to his race (African-American) and sex. The agency asserted that, unlike the co.worker, complainant refused to return to work and continued to "rant and rave." Following a hearing, the AJ determined that it was the co.worker and not complainant who was the aggressor, and that the supervisor made no attempt to calm either party before excusing complainant from work. The AJ found that the co.worker’s claim that she feared for her safety was not credible, and that witness testimony showed that the supervisor only addressed complainant, loudly ordering him to calm down, and then to clock out and go home. The supervisor did not listen when complainant attempted to explain what had happened, and made no attempt to interview witnesses. Thus, any investigation conducted by the agency was inadequate and insubstantial. As relief, the Commission ordered the agency to pay complainant $12,000 in compensatory damages, plus $20 for medical expenses, pay complainant back pay and interest for the period of leave taken due to the discrimination, and remove references to the leave taken, as well as a letter of warning from complainant’s records.

In Henderson v. USPS, EEOC Appeal No. 07A30138 (April 15, 2004), the Commission affirmed the AJ’s finding that complainant was discriminated against on the basis of her race when she was ordered to work outside of her medical restrictions and removed from employment. Complainant, a Letter Carrier, had previously suffered from frostbite to her fingers and was restricted from working outside in temperatures below 35 degrees. Her doctor noted that the restrictions were permanent and that protective clothing would not help her condition. Complainant was given a limited duty assignment of inside and outside work within her restrictions. Following a hearing, the AJ found that complainant was subjected to discrimination based on her race (African-American). The AJ noted that while complainant’s supervisor described her as being "out of control" after being instructed to work outside of her restrictions on a specific date, the witness accounts in the record did not support this assertion. Instead, the AJ found that the supervisor’s actions created and exacerbated complainant’s agitated reaction. Further, the AJ found that the racial atmosphere at the facility was not conducive toward African.Americans and other minorities, as shown by testimony of various witnesses. Specifically, one witness stated that management tolerated the use of derogatory terms to refer to African.American employees. Finally, the record failed to show that the agency made a concerted effort to identify an assignment consistent with complainant’s restrictions, despite doing so for two White comparative employees. The agency was ordered to reinstate complainant to a Letter Carrier position, with back pay and benefits, pay complainant $2,500 in compensatory damages, compensate complainant for overtime lost, and expunge the letter of termination.

In Chuney v. USPS, EEOC Appeal No. 07A10056 (October 6, 2003), request for reconsideration denied, EEOC Request No. 05A40189 (December 22, 2003), the Commission found that complainant was discriminated against on the basis of his race (African-American) when he was subject to discipline. Complainant was a Customer Service Supervisor who had worked for the agency for 23 years without being subjected to prior disciplinary action. In August 1997, he signed his first level supervisor’s name to a document that he submitted to the city for tax purposes. Upon learning of the action, complainant’s supervisor placed him in off.duty status, and, shortly thereafter, his second level supervisor transferred complainant to another facility and placed him on administrative leave. After being transferred, complainant was again placed on administrative leave for inappropriately swiping the badges of his employees. Complainant’s prior supervisor proposed to remove him for signing her name without authorization; however, complainant was ultimately reduced in grade to a Part.time Flexible Clerk. Complainant stated that he procrastinated in obtaining his supervisor’s signature on the tax document, which was for a refund to which he was entitled and not for inappropriate financial gain. He stated that the supervisor was not available when he attempted to obtain her signature, and that he had a deadline by which to submit the form. Complainant stated that the supervisor initially told him that he would only receive a two.week placement in non.duty status and a clarification meeting. With regard to the badge swiping, complainant noted that the action was standard practice, and that Caucasian supervisors swiped badges without repercussion.

Following a hearing, the AJ found that the spontaneity of the agency’s actions against a long term employee was suspicious, and that the record showed that several supervisors held negative perceptions of complainant because of his race. In support of this finding, the AJ cited testimony of complainant and a co.worker as to a racially hostile work environment, including being subjected to racially offensive names by customers and employees without action by management. The Commission noted that the disciplinary actions were excessive considering complainant’s length of service, lack of past discipline, intent, and acknowledgment of the impropriety of his actions. In addition, the record failed to show that the practice of swiping an employee’s badge was known to be improper. Finally, the Commission questioned the manner in which the agency disciplined two comparative employees in relation to complainant, noting that the personnel actions of the comparatives reflected that they were reassigned at their own requests. As relief, the agency was ordered to reimburse complainant $80 for medical expenses, pay him $55,000 in compensatory damages and attorney’s fees, and expunge all negative information related to the cited incident from his personnel file.

The complainant in Oke v. Department of Health & Human Services, EEOC Appeal No. 07A10049 (January 9, 2003), filed a complaint alleging that he was subjected to race (African-American) and national origin (Nigerian) discrimination when he was terminated during his probationary period. According to the record, complainant worked as an Epidemiologist for the agency. Prior to receiving a performance appraisal, complainant stated that he believed he was meeting his performance expectations. Following a hearing, the AJ determined that complainant established a prima facie case of discrimination, because the record showed that a comparative probationary employee (Hispanic) received similar “marginally successful” ratings but was not terminated. In fact, the comparative’s rating was changed after being challenged. Complainant’s first and second level supervisors cited his marginal performance as the reason for termination. They specifically referred to three projects which complainant failed to adequately complete. Nevertheless, the AJ found the stated reasons to be a pretext for discrimination. The AJ noted that complainant was not notified of any deficiencies, despite apparently not having performed in a satisfactory manner for several months. The AJ stated that the agency’s conduct rose to the level of disparate treatment when the comparative was notified of his performance deficiencies prior to the appraisal. The AJ also cited the agency’s failure to follow its own procedures with regard to training employees with performance problems, and contradictions in testimony by management officials. Specifically, while the second level supervisor stated that he received a complaint about complainant from a co.worker, the co.worker denied that assertion. The agency was ordered to offer complainant reinstatement with back pay and benefits, to cancel the termination and expunge all reference to that action from complainant’s records, and pay him $34,849.26 in damages.

The complainant in Jackson v. USPS, EEOC Appeal No. 01A14001 (January 6, 2003), was employed as a Casual Mailhandler with the agency. Complainant alleged that he was discriminated against on the basis of his race (Black) when he was released from his casual appointment. The agency stated that complainant was released from his appointment due to poor performance and attendance problems. Specifically, the agency indicated that complainant had two unscheduled absences which were considered absences without official leave (AWOL), and that several supervisors were unhappy with his performance. The Commission noted that a comparative employee who engaged in similar conduct was not removed from his assignment. In addition, complainant’s supervisor never discussed the performance or attendance problems with him prior to his termination, and had shortly before signed a Veterans Direct Hire form indicating that complainant was a good worker. In addition, another supervisor who worked with complainant recommended that he be rehired, and also stated that he was a good worker. The Commission stated that the agency’s failure to provide documentation to support that complainant had performance and attendance problems undermined its articulated reasons for the action. Further, there was no documentation to support the supervisor’s assertion that the comparative requested permission to be on leave, and the record shows that the leave was also unscheduled. According to the record, the supervisor initially stated that he released complainant because there was going to be a reduction in the number of employees and he was given a week to choose one of the two casual employees. Only later did the agency raise the issue of performance and attendance problems. As relief, the Commission ordered the agency to pay complainant back pay and benefits for the remainder of his Casual appointment and for one reappointment, consistent with that received by the comparative employee.

Discriminatory Nonselection

In Garcia v. Department of Homeland Security, EEOC Appeal No. 01A32050 (January 7, 2005), the Commission found that complainant, an Assistant Chief (Supervisory Border Patrol Agent), was subjected to national origin discrimination when he was not selected for two temporary details to serve as the Acting Assistant Regional Director. The two individuals who were chosen were both Assistant Chiefs and were not members of complainant’s protected group (Hispanic). The Commission noted that complainant authored and published an article and book for the agency, possessed numerous prestigious awards and letters of commendation, participated in several major agency National Programs, and served as an Assistant Chief for more than 11 years. The selectees were also Acting Assistant Regional Directors, but complainant had 10 more years of experience, and there was nothing in the record showing that either selectee had comparable credentials. The record therefore showed that complainant’s qualifications were demonstrably superior to those of the selectees, who had significantly less experience than the complainant. Thus, complainant proved that he was discriminated against on the basis of his national origin.

The Commission also made a finding of national origin discrimination with regard to complainant’s claim that he was not selected for a Supervisory Patrol Agent position based upon the agency’s failure to articulate a legitimate, non.discriminatory reason for the action. Specifically, the agency failed to provide the selectee’s application materials, or an affidavit from the selecting official stating the reasons for complainant’s nonselection. The agency was ordered to offer complainant a Supervisory Border Patrol Agent position or a substantially equivalent position, and the next available 30-day Acting Assistant Regional Director position, as well as conduct a supplemental investigation with regard to the issue of compensatory damages.

The complainant in McMillian v. Department of Transportation, EEOC Appeal No. 07A40088 (September 28, 2004), request for reconsideration denied, EEOC Request No. 05A50171 (December 13, 2004), an EEO specialist, applied and was not selected for an EEO Specialist (Mediator) position. Following a hearing, the AJ found that complainant was subjected to race (African-American) discrimination. The Commission noted that there were 8 vacancies in various states and that in all of the offices where the positions were located except one, the duties had been performed by an African.American. Complainant was performing the mediator duties in the area in which he applied, but was not selected. While the agency stated that the approving official played only a limited role in the selection process, and that the selectee was the best qualified candidate, the selecting official denied those assertions. The selecting official stated that the approving official was biased against African.Americans in general, and African.American males in particular. The selecting official further noted that the approving official unduly influenced his decision and expressed a preference for “fresh blood,” a “new face,” and someone with “higher credentials.” The selecting official stated that he would have selected complainant because of his qualifications and demonstrated success in performing the mediator duties, but that he presented both complainant and the selectee to the approving official because of her stated preference. The selecting official asserted that the approving official directed him to choose the selectee not realizing that she was African.American. The AJ found it suspect that not one of the seven African.American applicants who had been performing mediator duties was selected, while the one White candidate who was performing those duties was chosen for the position. The agency was ordered to promote complainant to an EEO Specialist (Mediator) position, or a substantially equivalent position, give complainant a Superior Contributor Increase award, and pay him $50,000 in compensatory damages.

In Walker v. USPS, EEOC Appeal No. 07A40032 (March 31, 2004), request for reconsideration denied, EEOC Request No. 05A40760 (May 20, 2004), the Commission found that complainant was discriminated against on the basis of her race (African-American) when she was denied a promotion. Complainant, who had served as an Acting Supervisor for 5 years, and another employee (African.American male) applied and were not selected for the position of Supervisor of Distribution Operations. The selecting official did not interview either candidate, and instead asked that the position be posted "area.wide." Following a hearing, the AJ determined that complainant was subjected to race discrimination. The AJ noted that while the selecting official stated that he did not select complainant because she had received a "basic" rating, a White co.worker credibly testified that a prior manager had encouraged her to apply stating that neither of the original candidates was "worth a damn." Further, the selecting official represented to the Personnel Services Manager that he had interviewed both candidates when he had not done so, and could not explain why he had given complainant the “basic” rating based on her application. As relief, the agency was ordered to offer complainant the Supervisor, Distribution Operations position, with back pay and benefits, and pay her $5,000 in compensatory damages.

The complainant in Guillot v. USPS, EEOC Appeal No. 07A30124 (February 12, 2004), applied for a Postmaster position, and was one of five candidates referred to the selecting official for final consideration. The selecting official chose another applicant (African-American, non Catholic), summarily stating that complainant was not the best qualified candidate for the position. Complainant alleged that the nonselection was discriminatory based upon her race (Caucasian), religion (Catholic), and in reprisal for prior EEO activity. Following a hearing, the AJ found that the agency failed to articulate a legitimate, nondiscriminatory reason for complainant’s nonselection, and that complainant proved that the reasons which were offered were a pretext for prohibited discrimination. The AJ noted that complainant had more years of postal experience, more recent Postmaster relief experience, experience at larger facilities, experience serving as an acting supervisor in the 204.B training program, and 14 years of window qualification which was a critical qualification for the position. Thus, the AJ concluded that complainant’s qualifications were superior to those of the selectee. Further, the selecting official did not identify any criteria used to make her determination, nor identify the ways in which the selectee met the criteria better than complainant until her testimony at the hearing, at which time her statements were self.contradictory and contradicted by other evidence in the record. For example, the selecting official initially testified that the Review Committee found all of the candidates to be evenly qualified, but later stated that the Committee rated complainant last among the candidates. In addition, while the selecting official stated that she rated the candidates on a scale of 1 to 5 and the selectee received a higher rating than complainant, the record contained no written record of such a rating system. The Commission noted that the record did not support the agency’s assertions concerning customer complaints about complainant or complainant’s negative attitude. The agency was ordered to appoint complainant to a Postmaster, or substantially equivalent position with backpay and benefits, and pay her $15,000 in compensatory damages.

In Shaw v. Department of Veterans Affairs, EEOC Appeal No. 01A23850 (November 6, 2003), the Commission found that complainant was discriminated against on the basis of his race (African-American) when he was not selected for a Police Officer position. Complainant applied for the Police Officer position but was not selected in favor of a White candidate. The selecting official stated that he found the selectee to be the top candidate after looking at the applicants’ backgrounds, specifically the experience they had prior to applying for the position such as investigations and law enforcement. The Commission, however, found complainant’s qualifications to be plainly superior to those of the selectee. Specifically, the record showed that complainant had a lengthy career in law enforcement, including being employed as a Police Officer by the Air Force for 20 years, being previously hired by the selecting official as a Police Officer, and working at the agency in the position for 8 years. The selectee, on the other hand, spent 17 years as a Law Enforcement Specialist with the Air Force. The Commission noted that while length of service alone is not sufficient to show that one’s qualifications are plainly superior, complainant’s experience in this case included working in the same position and facility as the vacancy, and his qualifications in law enforcement, of which the selecting official was aware, were far beyond those of the selectee. Finally, the agency erroneously omitted over 4 years of experience complainant had at the facility where the position was located. The agency was ordered to offer complainant the Police Officer position with back pay and benefits, and conduct a supplemental investigation with regard to damages.

The complainant in Harley v. Department of Labor, EEOC Appeal No. 07A30077 (September 30, 2003), request for reconsideration denied, EEOC Request No. 05A40178 (January 22, 2004), was not an agency employee. He applied for a Wage and Hour Specialist position, his name was placed on the certificate of eligibles, and he was interviewed by the Acting District Director (African-American). Three candidates, including complainant and the selectee, were then interviewed a second time, and the Acting Director recommended complainant (African-American) for the position. The selecting official, however, chose the selectee who was employed by the agency in another office. Complainant alleged that he was subjected to discrimination on the basis of his race when he was not selected for the position. Following a hearing, the AJ found that complainant established that the reason offered by the agency, that is that the selectee was better qualified, was a pretext for race discrimination. The AJ noted that the selecting official had never before overruled a recommendation by the Acting Director, who testified that he believed that the selection was racially motivated. The Acting Director noted that the office employed six White employees but only two Black employees. The Commission noted that the Acting Director, who was the only official to interview the candidates, rated complainant first and the selectee second, and stated that he had given the decision considerable time and thought. The Acting Director indicated that complainant was the stronger candidate based upon his managerial experience, work toward a degree, extensive military experience, work experience, and performance during the interview, whereas the selectee’s experience was primarily as a secretary and technician with the agency. Further, while the agency indicated that the selectee had knowledge of the laws and regulations enforced by the Wage and Hour Division, complainant’s application showed similar knowledge. The agency was ordered to pay complainant $5,000 in compensatory damages plus attorney’s fees and costs, and offer complainant the Wage and Hour Specialist or a substantially equivalent position with back pay and benefits.

In Franco v. Department of Veterans Affairs, EEOC Appeal No. 07A30012 (September 24, 2003), the Commission affirmed the AJ’s finding that the agency discriminated against complainant based on his national origin when it did not select him for the position of Computer Specialist. Complainant was employed as a Computer Specialist with the agency at the time he applied for the position. Complainant alleged that his nonselection was discriminatory based upon his national origin (Hispanic). The agency asserted that the selectee’s qualifications were superior to complainant’s, as the selectee was well.rounded in both hardware and software, the selectee had better communication skills than complainant during the interview, and showed more initiative. Nevertheless, the AJ concluded that the agency’s stated reasons were pretextual. The AJ found the selecting official’s testimony to be inconsistent and lacking in credibility. Specifically, the selecting official’s affidavit was inconsistent with (her) testimony during the hearing. Further, witness testimony supported a finding that the selecting official was biased against Hispanics and would only hire White Americans. The Commission noted that there was no uncontroverted, independent evidence to establish that the nonselection was not motivated by discrimination. The agency was ordered to offer complainant the Computer Specialist position or a substantially equivalent position, with back pay and benefits, and pay him $10,000 in compensatory damages plus attorney’s fees.

The complainant in Monroe v. Department of Transportation, EEOC Appeal No. 01A11476 (February 6, 2003), worked for the agency as an Airway Transportation Systems Specialist, GS.12. He applied for a promotion to the GS.13 level, but was not selected in favor of someone outside of his protected class. Complainant subsequently filed a formal complaint alleging that he was subjected to discrimination on the basis of his race (African-American). The agency asserted that the selectee was the best qualified in that he met all four of the selection criteria while complainant met only three criteria. Nevertheless, the Commission found that complainant was subjected to discrimination. Specifically, complainant scored higher on the agency’s Standardized Rating Criteria than the selectee. Further, while the selecting official stated that he relied upon other criteria, he could not specifically recall these factors, and they were not made part of the vacancy announcement or otherwise provided to the applicants. The selecting official also did not interview the candidates or provide them an opportunity to address these criteria. The Commission noted that the lack of evidence regarding the alleged selection criteria raised a suspicion that there were irregularities in the selection process.

In addition, the selecting official asserted that complainant was not able to independently complete assignments. The selecting official, however, made reference to complainant’s ability to complete his assignments and projects in a timely and efficient manner throughout complainant’s appraisal, and nowhere indicated that complainant had difficulty completing his assignments without assistance. Further, the Commission noted that the selecting official’s statements were inconsistent with his assignment of complainant as acting supervisor for a three month period. Complainant also participated in special projects and detail assignments thereby providing him with experience that the selectee lacked. Thus, the Commission determined that the selecting official’s assertion that the selectee was better qualified for the position was not credible. Finally, complainant stated that he overheard the selecting official and two other employees make a joke about the possibility of selecting complainant for the position. The two employees confirmed that the incident occurred. The Commission noted that the evidence that the selecting official, who was White, was joking with two other White employees about the selection of a Black applicant lends credence to complainant’s claim of race discrimination. The Commission noted that complainant was the only Black Airway Transportation Systems Specialist in the unit, and that both supervisors were White. As relief, the agency was ordered to offer complainant an Airway Traffic Systems Specialist position or a substantially equivalent position, with back pay and benefits, and to pay attorney’s fees.

In Bennett v. Department of Justice, EEOC Appeal No. 01A04452 (January 30, 2003), the Commission found that complainant was subjected to race discrimination when she was not selected for a promotion. The agency posted an internal vacancy announcement for a Supervisory Classification Specialist, GS.14, position. One individual (White) applied and was selected, but ultimately declined the position. The agency subsequently readvertised the position internally, and complainant, a Position Classification Specialist with the agency’s Federal Bureau of Investigation, submitted her application. Complainant (African-American) was the only applicant at that time; however, the position was not filled and was instead advertised outside of the agency. Complainant again submitted an application, along with three other individuals. All of the candidates were interviewed, and a White male applicant was selected for the position.

The selecting official stated that he chose the selectee because he was "highly regarded," had experience in a variety of areas, and had a solid educational background, including a college degree. Nevertheless, the Commission found these articulated reasons to be a pretext for discrimination. Specifically, the Commission noted that while the selecting official cited broad experience and education as criteria for selection, the record showed that he encouraged two former White employees to apply for the position even though they presumably had no greater experience or education than complainant. In addition, complainant met the skill and educational requirements in the vacancy announcement. According to the record, the selecting official also advised complainant’s former supervisor, prior to the selection, that he did not intend to choose complainant because he thought she was lazy. Complainant’s supervisor stated, however, that complainant was an exceptional employee, very competent, had a high degree of skill, and needed very little, if any supervision. In addition, the record showed that complainant maintained the heaviest work load, received “outstanding” ratings, and served as acting supervisor on more than one occasion. The former supervisor noted that although she had always been on rating panels for other positions, she was not asked to participate in this selection, and was subsequently excluded from career panels after she questioned the selecting official’s decisions. Thus, the Commission concluded that, although there was no evidence that the selecting official had made racist comments, the record indicated that he gave preferential treatment to some employees because of race, and that race was the motivating factor in complainant’s nonselection. The agency was ordered to offer complainant the Supervisory Position Classification Specialist or a substantially equivalent position, with back pay and benefits, and to pay attorney’s fees.

Miscellaneous Issues

In Lopez v. USPS, EEOC Appeal No. 07A40039 (September 21, 2004), the Commission affirmed the AJ’s finding that complainant was subjected to race discrimination when the agency failed to adhere to its "Zero Tolerance" policy and conduct an investigation into an assault on complainant by her supervisor. Complainant, a registered nurse, alleged that she was treated differently than other nurses because of her race (African-American/Hispanic) when she was given different tasks, and denied leave. She also stated that on one occasion, her supervisor assaulted her and grabbed her arm. While the record shows that the agency had a "Zero Tolerance" policy for acts or threats of violence in the workplace, there was no evidence that the agency ever conducted an investigation with regard to that incident. The record included statements from two witnesses, who noted that the supervisor treated complainant differently in terms of assignments, and spoke to her in a condescending manner. The record supported a finding that complainant was given different and more difficult tasks than other nurses, treated in a rude manner by her supervisor, and subjected to a physical altercation. The Commission deferred to the AJ’s credibility determination with regard to the testimony of the supervisor, who the AJ found not to be credible when contrasted with the testimony of complainant and her two co.workers regarding the reasons complainant was treated differently than others. The agency was ordered to pay complainant $4,000 in compensatory damages.

In Mayfield v. Department of Veterans Affairs, EEOC Appeal No. 01A21083 (April 23, 2003), request for reconsideration denied, EEOC Request No. 05A30942 (July 16, 2003), the Commission found that complainant was discriminated against on the basis of her race when her position was abolished and she was required to apply for another position with the same qualifications. Complainant (Black) was employed by the agency as a Clinical Coordinator of Geriatric Service, Inpatient Line. The agency abolished complainant’s position in conjunction with the abolishment of the Geriatric and Community Service Line and realignment of that service with the Medical Service Line. Complainant stated that other employees in Geriatric Services were realigned to positions in Medical Services, while she was required to apply for a position. Complainant ultimately applied and was selected for the position of Transitional Rehabilitation Coordinator which was equivalent to her prior position. The Commission found that complainant established a prima facie case of race discrimination. The Commission noted a lack of comparative evidence, but cited other evidence showing that the agency was motivated by discrimination. Specifically, the former Chief Nurse stated that a former Chief of Personnel and others in that department stated that there were too many Black nurses. In addition, the Medical Center Director told the former Chief Nurse that she would be better off with a White Nurse Recruiter because she might get more White nurses. The Chief of Human Resources also indicated that when a position is abolished, employees are not required to compete for another position, and it is the agency’s policy to realign the employee to a position, and then allow her to compete for another position if she is not satisfied with the position to which she is realigned. The Commission stated that the record contained no independent evidence explaining why complainant was required to apply for a position instead of being realigned. Thus, the agency failed to provide a legitimate, nondiscriminatory reason for the action. The agency was ordered to conduct a supplemental investigation with regard to the issue of compensatory damages.