Volume XXI, No. 1
Office of Federal Operations
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
Editor: Robyn Dupont
Writers: Edmund Chiang, Tiane Doman, Robyn Dupont, Megumi Fujita, Amy Hough, Davis Kim, David Norman, Joseph Popiden, Arnold Rubin, Gerard Thomson
The Digest is now available online through EEOC's homepage at www.eeoc.gov.
Insufficient Evidence to Support Claim that Administrative Judge Should Have Recused Himself. Complainant alleged that the Administrative Judge who issued the decision on her complaint should have recused himself because at one time her agency owned the building where the Commission was a tenant, and she and her coworkers observed Administrative Judges and agency managers talking with each other and having lunch together. Complainant alleged that the Administrative Judge demonstrated bias against her when he disallowed certain evidence and rushed complainant’s testimony at the hearing. On appeal, the Commission found this insufficient to demonstrate bias or require the Administrative Judge to recuse himself. Daphne R. Guient v. United States Postal Service, Appeal No. 0120092811 (October 27, 2009).
(See also, “Findings on the Merits,” this issue. – Ed.)
Reduction of Attorney’s Fees Was Proper. Following a hearing, an Administrative Judge found that complainant was subjected to discrimination in reprisal for prior EEO activity when she was instructed to work beyond her limitations, chastised for letting a stranger into the building and being rude to others, and told to remain gainfully employed all day. The Administrative Judge awarded complainant, among other things, $9,317 in attorney’s fees, which the agency paid. The agency appealed the matter. Complainant responded to the agency’s appeal and filed a cross-appeal challenging the Administrative Judge’s finding that she failed to show that she was subjected to discrimination or harassment with regard to five other claims. On appeal, the Commission found that the Administrative Judge properly found discrimination on one issue, and no discrimination or harassment with regard to the remainder of the claim. Subsequently, complainant’s attorney requested additional fees and costs associated with the appeal. The agency reduced the fee request by 50 percent, noting that complainant prevailed only as to her opposition to the agency’s appeal and not on her own cross-appeal. Further, the agency reduced the hours claimed. The Commission affirmed the agency’s decision. The Commission noted that the agency correctly stated that complainant only prevailed as to the issue raised in the agency’s appeal, and was not entitled to fees or costs associated with her cross-appeal. Further, the bulk of complainant’s arguments on appeal concerned her unsuccessful claims, thereby justifying a reduction in the hours claimed. Cheryle V. Turner v. United States Postal Service, EEOC Appeal No. 0120092153 (October 20, 2009).
Agency Ordered to Pay Attorney’s Fees Based on Reasonable Rate for Out-of-Town Counsel. The Commission ordered the agency to pay complainant’s attorney’s fees in the amount requested, even though complainant sought out-of-town counsel. While noting that the reasonable hourly fee is generally the prevailing market rate in the relevant community, the Commission further found that the agency failed to meet its burden of showing that complainant’s decision to retain out-of-town counsel was unreasonable. Complainant asserted that when the agency refused to implement the decision of an Administrative Judge awarding her compensatory damages, she found it necessary to obtain legal counsel outside of the area who was experienced in federal EEO matters. The Commission found that it, in this case, it was not unreasonable for complainant to seek out-of-town counsel with relevant experience and a proven track record of success in receiving favorable outcomes for its clients. The Commission ordered the agency to pay complainant’s reasonable attorney’s fees in the amount originally requested. Zina D. Coffee v. Department of the Army, EEOC Appeal No. 0120093008 (November 17, 2009).
Attorney Entitled to Prevailing Market Rate. Complainant successfully pursued a claim of disability and reprisal discrimination, and requested attorney’s fees. According to the record, his attorneys, as part of the Federal Employee Legal Services Center, provide legal representation to federal employees at a “reasonable cost.” Complainant’s attorneys entered into a fee agreement with complainant at a reduced rate. On appeal, the Commission found that complainant was entitled to attorney’s fees based upon the attorneys’ customary hourly rate, which the Commission stated was reasonable and supported by the evidence of record. The Commission noted that attorneys who demonstrate that they charged reduced rates to federal employees in discrimination cases based upon public interest motives are entitled to receive an hourly rate at the prevailing market rate, notwithstanding a fee agreement. Melvin D. Lampkins v. United States Postal Service, EEOC Appeal No. 0720080017 (December 8, 2009).
Class Action Properly Certified. The class agent filed a formal complaint alleging that rehabilitation and limited duty employees at the agency were discriminated against when the agency implemented its National Reassessment Program (NRP). According to the agency, the purpose of the NRP was to “standardize” the process used to assign work to employees who were injured on the job. The class agent asserted that the NRP failed to provide reasonable accommodation, created a hostile work environment, wrongfully disclosed medical information, and had an adverse impact on disabled employees. According to the record, the class agent had been satisfactorily performing in a modified position following a work-related injury, but was ultimately told that there was no work available for her under the NRP and separated from her position. An Administrative Judge found that the proposed class met all four of the requirements for class certification, and the Commission concurred on appeal. With respect to commonality and typicality, the class agent showed that the agency had a nationwide practice of targeting employees in rehabilitation or limited duty positions, adversely affecting their reasonable accommodations via the NRP. The Administrative Judge noted that while the specific harm may be different for the various employees involved, there was a common link, that is, all class members were asserting they were negatively affected by the NRP. Further, the class met the numerosity requirement because the NRP was a national program. Finally, the class agent showed that, at this stage, she was a qualified individual with a disability, and her position, as well as some of the other putative class members’ positions involved necessary work. The agency was ordered to forward the matter for a hearing on the certified class claim. Sandra M. McConnell, et al. v. United States Postal Service, EEOC Appeal No. 0720080054 (January 14, 2010).
(The decisions below are a selected sampling of recent awards of compensatory damages. See, also, “Findings on the Merits,” this issue. – Ed.)
$200,000 Awarded for Denial of Reasonable Accommodation. The Commission found that complainant was discriminated against when he was denied reasonable accommodation (see Findings of Discrimination below). The Commission determined that complainant was entitled to an award of $200,000 in non-pecuniary compensatory damages as a result thereof. Specifically, the Commission noted that the agency’s failure to accommodate complainant resulted in his inability to work and in the loss of income. Complainant testified that due to the loss of his job, his ex-wife sued for custody of his children, and he was unable to satisfy his child and spousal support obligations. Complainant stated that the agency’s actions brought him to the brink of “financial ruin.” Maurice W. Blount v. Department of Homeland Security, EEOC Appeal No. 0720070010 (October 21, 2009), request for reconsideration denied EEOC Request No. 0520100148 (April 16, 2010).
$25,000 Awarded for Retaliation. The Commission determined that complainant was entitled to an award of $25,000 in non-pecuniary compensatory damages following a finding by an Administrative Judge that complainant had been subjected to reprisal. Complainant submitted several statements confirming that he suffered emotional and psychological harm as a result of the retaliation. Specifically, complainant experienced frustration, feelings of helplessness, humiliation, sleeplessness, obsessive thoughts, chronic fatigue, and anxiety, and was unable to participate in life activities. Jeffrey S. Smith v. Social Security Administration, EEOC Appeal No. 0120072400 (July 17, 2009), request for reconsideration denied EEOC Request No. 0520090623 (February 4, 2010).
$10,000 Awarded for Disability Discrimination. In a prior decision, the Commission found that complainant was subjected to disability discrimination when the agency made inappropriate medical inquiries. Subsequently, the Commission determined that complainant was entitled to an award of $10,000 in non-pecuniary damages as a result of the discrimination. Complainant stated that his supervisor’s actions caused him daily stress. In addition, he had trouble sleeping, and was angry. Complainant was treated for stress and anxiety, and his wife confirmed that he felt angry and frustrated. Jose Torres v. Department of Veterans Affairs, EEOC Appeal No. 0120091384 (July 22, 2009), request for reconsideration denied EEOC Request No. 0520100005 (January 21, 2010).
$3,500 Awarded for Denial of Reasonable Accommodation. In a prior decision, the Commission found that the agency discriminated against complainant on the basis of disability when it denied him a reasonable accommodation. Subsequently, the Commission found that complainant had established that he was entitled to non-pecuniary, compensatory damages in the amount of $3,500 based upon his wife’s corroborating testimony that he suffered from stress, anxiety, and depression aggravated by the agency’s denying him reasonable accommodation. Robert E. Preston v. United States Postal Service, EEOC Appeal No. 0120080548 (October 16, 2009).
$2,500 Awarded for Retaliatory Working Conditions. The Administrative Judge found that complainants were retaliated against when the agency took away their vehicles, overtime, and overtime pay after complainants voiced their objection to a burden placed on only male employees. On appeal, the Commission affirmed the Administrative Judge’s award of compensatory damages to each complainant in the amount of $2,500 for fear, anxiety, sleep loss, embarrassment, and loss of professional reputation over a three to four year period. Duane W. Shenberger et al. v. Department of Justice, Appeal No. 0120081750, et al. (October 30, 2009).
(See also by category, this issue.—Ed.)
Agency Improperly Dismissed Complaint for Untimely Filing and Failure to State a Claim. Complainant filed a formal EEO complaint alleging discrimination on the bases of race (African American) and sex (female) resulting in a hostile work environment after she was placed on Emergency Placement Off-Duty Status and later issued a 14-day suspension. The agency dismissed the complaint for failure to state a claim and for untimely filing of the formal complaint. With regard to the matter of timeliness, the Commission stated that, in the absence of a legible postmark, as was the case here, the complaint is deemed timely if it is received by mail within five days of the expiration of the applicable filing period. The Commission further found that the agency improperly considered complainant’s allegations in piece-meal fashion and held that claims of harassment must instead be assessed based on their cumulative effect. The Commission concluded that complainant’s allegations stated a viable claim of discriminatory harassment. The case was remanded back to the agency for further processing. Joi C. Brown v. United States Postal Service, EEOC Appeal No. 0120093319 (January 13, 2010).
(See by statute, as well as multiple bases, this issue. –Ed.)
Denial of Reasonable Accommodation: Work at Home. Complainant, an Immigration Status Verification Officer, filed a formal complaint alleging discrimination on the basis of his disability. Specifically, complainant stated that, after he had a stroke, the agency failed to act on his request to work at home as a reasonable accommodation. Complainant made his requests by telephone. During the investigation of his complaint, complainant asserted that the agency’s actions resulted in his inability to work, and he sought disability retirement. On appeal, the Commission initially found that complainant was a qualified individual with a disability. Complainant requested the reasonable accommodation of working at home, at least part time, while undergoing rehabilitation. One management official attempted to assist complainant in pursuit of a reasonable accommodation, but was told that the matter was not his concern and that there was no work for complainant. That official testified, however, that there were many tasks complainant could have performed at home which would have aided in the mission of the agency, and that it was possible for complainant to access the agency’s computer databases from home. Complainant also stated that he would have been able to access the agency’s computer network from home and perform some work functions.
The Commission noted that complainant’s requests for accommodation were summarily denied by the agency before it requested any medical documentation. The Commission found that the agency made no attempt to determine what complainant’s limitations were or which of his essential job functions could be modified, and made no attempt to explore the possibility of other potential accommodations. Instead, the agency encouraged complainant to seek disability retirement. Agency officials testified that they were “either unaware or untrained” as to their responsibilities under the Rehabilitation Act. The Commission concluded that the agency failed to make a good faith effort to reasonably accommodate complainant. The agency was ordered to reinstate complainant to his position, with appropriate back pay, and pay complainant $200,000 in compensatory damages. Maurice W. Blount v. Department of Homeland Security, EEOC Appeal No. 0720070010 (October 21, 2009), request for reconsideration denied EEOC Request No. 0520100148 (April 16, 2010).
Denial of Reasonable Accommodation: Change in Schedule. The Commission affirmed the Administrative Judge’s finding that the agency discriminated against complainant on the basis of her disability (Bipolar Disorder) when it failed to provide her with reasonable accommodation and ultimately terminated her from employment. According to the record, complainant had previously been granted an early work schedule so that she could attend medical appointments associated with her condition. In 2002, however, complainant was assigned to a new supervisor who revoked her flexible schedule, and returned her to the later, regular schedule. Subsequently, complainant was rated “Does Not Meet Expectations” on her annual performance appraisal, and ultimately terminated. Following a hearing, the Administrative Judge found that complainant was subjected to disability discrimination. On appeal, the Commission noted that the agency did not contest the Administrative Judge’s finding that complainant was an individual with a disability. Further, the Commission noted that the evidence showed that complainant performed the duties of her position in a satisfactory manner before her new supervisor revoked her accommodation. The record showed that management at complainant’s facility was aware of complainant’s condition and her need to work an early schedule to avoid exhaustion and concentration problems, and attend doctor’s appointments. The Commission determined that the agency did not prove that providing complainant with an early work schedule would have been an undue hardship, especially in light of the fact that the agency granted her an early work schedule for over three years. Finally, the Commission concurred with the Administrative Judge’s finding that the agency’s failure to provide complainant with reasonable accommodation resulted in her termination. The agency was ordered to, among other things, make an unconditional written offer to complainant to place her into her former position with an early work schedule, pay complainant appropriate back pay, and pay complainant $10,000 in proven compensatory damages. Yvonne Hamblin v. Department of Justice, EEOC Appeal No. 0720070041 (September 3, 2009), request for reconsideration denied, EEOC Request No. 0520100012 (March 31, 2010).
Disparate Treatment Found in Assigning Work. Complainants both worked for the agency as part-time flexible Flat Sorter Machine Clerks. They each filed a formal EEO complaint alleging that they were subjected to discrimination on the basis of their disability (back, neck and shoulder injuries – Lau; and carpal tunnel syndrome, left shoulder tear and tendonitis – Tuialuuluu) when they were denied work for which they were qualified and that they were able to perform. After holding a consolidated hearing in the matters, an Administrative Judge issued a decision finding that complainants were subjected to discrimination. Initially, the Administrative Judge found that complainants were disabled within the meaning of the Rehabilitation Act, and that there was no evidence they lacked the skills or experience necessary to do the jobs to which they were assigned when their hours were reduced. Further, the Judge noted that while complainants’ pay was reduced by two hours per day, several part-time flexible employees who were not disabled did not have their hours reduced and in some cases worked overtime. The Administrative Judge found the agency’s explanation for the action, that is low mail volume, was not credible and was a pretext for disability discrimination.
On appeal, the Commission affirmed the Administrative Judge’s decision. The Commission noted that the Administrative Judge found the testimony concerning the decreased mail volume was not credible. Specifically, the supervisor who testified concerning the matter did not assign work in complainants’ area and, thus, was not in a position to evaluate mail volume. Further, another management official who testified gave contradictory explanations for reducing complainants’ hours. The agency was ordered to pay complainants back pay, with appropriate benefits and interest, and provide training for the responsible management officials. Anne Lau & Chongsun Tuialuuluu v. United States Postal Service, EEOC Appeal Nos. 0720070065 & 0720070066 (October 23, 2009).
Race Discrimination Found: Non-selection. Complainant filed a formal EEO complaint alleging he was discriminated against on the basis of his race (White) when he was not selected for a promotion. On appeal, the Commission found that complainant put forth a prima facie case of race discrimination in that he applied for the position, was qualified and tentatively selected, but then his promotion was disapproved. In addition, complainant identified two individuals within his agency that were not of his race, but were selected for promotions. Although the Commission found that the agency met its burden to put forth a legitimate, nondiscriminatory reason for not promoting complainant, namely that he was under investigation for violating a court order, the Commission further concluded that the agency’s reason was unworthy of credence and not supported by the evidence in the record. The Commission noted that while the selecting official stated that he could not process the promotion because of the investigation, the agency failed to provide documentation of any such policy or any documentation pertaining to the investigation. Thus, complainant successfully showed that the agency’s reasons for his non-selection were a pretext for discrimination. The Commission ordered the agency to offer complainant the position, or a substantially equivalent position, with appropriate back pay, and to conduct an investigation to determine whether he was entitled to compensatory damages as a result of his non-selection. Scott M. Rodgers v. Department of the Interior, EEOC Appeal No. 0120071822 (November 20, 2009).
Sex Discrimination Found: Non-selection. Complainant, a supervisory staff attorney, submitted an application to the Office of Personnel Management (OPM) for an Administrative Law Judge position. Complainant was deemed qualified for the position. Complainant was included on two certificates sent to the agency by OPM, and was interviewed by the agency. She received a composite interview score of seven points, which the Acting Chief Administrative Law Judge indicated made her a “borderline” candidate for selection. Candidates were asked to rank their geographic preferences, and the agency then went down the list of localities with openings and matched each vacancy with candidates that had expressed an interest in working in that area. The agency selected the top three candidates who had expressed an interest in each locality based upon their OPM scores to compete for the position. Complainant was considered for six vacancies, but was not selected for any positions.
Following a hearing, an Administrative Judge found that complainant was subjected to sex (female) discrimination when she was not selected for two of the positions. On appeal, the Commission affirmed the Administrative Judge’s decision. The responsible management officials testified that complainant was not selected for either position because she was not the most qualified based upon the recommendations of the interview panels. The Commission concurred with the Administrative Judge that the selecting officials based their decisions on “vague perceptions, intuitions, and feelings that were not premised upon the objective record.” For example, one of the selecting officials stated that she was concerned with complainant’s willingness to take on an assignment in a particular location and stay for the required two-year period. Complainant, however, credibly testified that she informed the interview panel in no uncertain terms that she would be willing to accept any position available and remain for at least two years. In addition, complainant previously relocated for over three years to accept an attorney position. Further, while the selecting official expressed concerns about whether complainant would be sensitive to the agency’s complainants, and be responsive to agency management, complainant’s performance appraisals of record clearly stated that she worked well with members of the public and management officials, and had strong interpersonal skills. The selecting official was unable to clearly explain any basis for her concerns about complainant beyond her own subjective impression. Finally, while the selecting official stated that she spoke with agency officials who worked with complainant, those named officials did not recall speaking with the selecting official about complainant. The agency was ordered to place complainant into either of the positions specified or a substantially equivalent position, with appropriate back pay and benefits, as well as pay complainant $30,000 in proven compensatory damages, $95,095.80 in attorneys’ fees, and $6,288.32 in costs. Constance Carter v. Social Security Administration, EEOC Appeal No. 0720080005 (October 23, 2009).
Race and Sex Discrimination Found. Complainant, an African-American, and the selectee, a White female, submitted applications for the position of Prosthetic Representative. The Commission found that complainant possessed plainly superior qualifications for the position in relation to the selectee. Complainant worked in the Prosthetics division for approximately 10 years of his 22 years with the agency with various duties and a greater range of programs. The selectee had approximately seven years of experience at the agency and in Prosthetics. The Commission also found that the selectee had a suspiciously unfair advantage in the selection process, in that the record reflects that the selectee previewed the qualifications for the position and signed the recruitment checklist before the vacancy announcement was issued while she was acting chief. It is also noted that at least one interview panelist claimed the selectee was better qualified due to her management experience, even though the vacancy was for a “trainee” job that did not require management skills. Further, the selecting official acknowledged that he falsified selection documents that indicated that he contacted references for a candidate, reviewed the agency’s diversity plan, and discussed the plan with the EEO manager. The Commission also noted that the selecting official stated to complainant and other employees that he was left to die in Vietnam by an African-American man. In addition, the selecting official never selected an African-American, although he had interviewed African-Americans for positions. Given the totality of the circumstances, the Commission found that the agency’s explanations for not selecting the complainant were unworthy of belief. Among other relief, the Commission ordered the agency to offer complainant the position of Prosthetics Representative, with the appropriate amount of back pay, and provide EEO training to the responsible agency officials. Tony L. Calloway v. Department of Veterans Affairs, EEOC Appeal No 0120080458 (September 29, 2009), request for reconsideration denied, EEOC Request No. 0520100087 (March 11, 2010).
Disability and Reprisal Discrimination Found. Complainant filed a formal EEO complaint alleging that he was subjected to disability discrimination when the agency disseminated private medical information during a pre-disciplinary meeting and subjected to reprisal discrimination when the agency issued him a 14 day suspension. Following a hearing, an Administrative Judge found discrimination with regard to both matters. On appeal, the Commission affirmed the Administrative Judge’s decision. According to the record, during the pre-disciplinary meeting, a union steward and a supervisor were given a copy of a report that contained detailed medical records, including documentation of complainant’s symptoms when he was admitted to the hospital, and the resulting diagnosis. The Commission noted that documentation concerning an individual’s diagnosis is without question medical information that must be treated as confidential under the EEOC Regulations. Thus, the agency’s release of complainant’s medical information was a per se violation of the Rehabilitation Act. With regard to the suspension, the Commission noted that management was aware of complainant’s prior EEO activity and issued the suspension within a period of time such that a retaliatory motive can be inferred. In addition, while the agency asserted that complainant submitted altered medical documentation in support of a leave request, the Administrative Judge credited complainant’s testimony that he did not intend to defraud the agency when he submitted “sanitized” medical documentation. In addition, as complainant had no previous discipline, the 14-day suspension was not commensurate with the agency’s progressive discipline policy, and the agency had previously accepted similarly redacted medical documentation. The agency was ordered to pay complainant $25,000 in non-pecuniary compensatory damages and $61,920.59 in attorney’s fees and costs, as well as rescind the notice of suspension and restore any leave used as a result of the discrimination. Melvin D. Lampkins v. United States Postal Service, EEOC Appeal No. 0720080017 (December 8, 2009).
Reprisal Found: Comments by Selecting Official. Complainant applied and was not chosen for a position. After complainant filed an EEO complaint, the selecting official told a co-worker that he could not believe complainant filed a complaint, that she was a liability, and that she was on the “other side of the line” because she filed the complaint. The selecting official told the co-worker that if she was going to file a complaint, to tell him first. He further told the co-worker that he expected loyalty from his employees. Additionally, two weeks before the hearing in this matter, the selecting official told the co-worker that he knew she was named as a witness, that a court reporter would be at the hearing, and that the transcript was a public record and he would know everything the co-worker said. The Commission found that the selecting official illegally interfered with the EEO process when he made the comments to the co-worker. The Commission ordered the agency to provide the selecting official with 16 hours of EEO training, and to consider taking disciplinary action against the selecting official. Kathleen James v. Department of Agriculture, EEOC Appeal No. 0120073831 (September 22, 2009), request for reconsideration denied, EEOC Request No. 0520100086 (March 22, 2010).
Retaliatory Non-selection Found. Complainant filed a formal EEO complaint alleging, among other things, that he was subjected to reprisal when he was not selected for a Store Director position. The Commission found that complainant established a prima facie case of reprisal. Complainant requested reasonable accommodation, and subsequently complained repeatedly to a supervisor, who was also the selecting official for the position, that he was subjected to adverse treatment that affected his health. Complainant was not selected despite having previously occupied the position and receiving positive performance reviews. Further, the Commission found that agency failed to adequately explain its decision not to select complainant. The agency stated merely that it exercised its hiring authority to reassign the selectee to a position within the same pay-band. It did not explain why it chose to do so, and, as such, offered no explanation for its hiring decision which would provide complainant with a full and fair opportunity to demonstrate pretext. The agency was ordered to, among other things, offer complainant the position, with appropriate back pay and benefits, and conduct a supplemental investigation with regard to compensatory damages. Johnny W. Lovett v. Department of Defense, EEOC Appeal No. 0120092291 (November 17, 2009).
Commission Has Jurisdiction Over Complaints of Disability Discrimination Brought By Transportation Screeners Under the Rehabilitation Act. Complainant filed a formal EEO complaint alleging that she was subjected to disability discrimination when she was terminated from her position as a Transportation Security Screener. The agency dismissed the complaint for failure to state a claim, asserting that complainant’s claim of disability discrimination under the Rehabilitation Act was preempted by the Aviation and Transportation Security Act (ATSA). On appeal, the Commission found that it has jurisdiction over the complaint, stating that the ATSA does not divest the Commission of jurisdiction over complaints brought by security screeners under the Rehabilitation Act or other statutes enforced by the Commission. While Congress gave the agency broad authority to establish terms and conditions of employment for security screeners, that authority does not include complete exemption from section 501 of the Rehabilitation Act. In the case at hand, it did not appear complainant was challenging an ATSA-mandated qualification standard. Rather, she claimed she was discriminatorily terminated for alleged poor work performance and/or misconduct. Thus, the matter should not have been dismissed for failure to state a claim. Melissa Hill v. Department of Homeland Security, EEOC Appeal No. 0120072909 (October 8, 2009).
Complainant, a Lead Transportation Security Officer, alleged that he was discriminated against on the basis of his disability when he was denied reasonable accommodation, placed on administrative leave, and subsequently terminated. The agency dismissed the complaint for failure to state a claim, stating that complainant’s claim of disability discrimination under the Rehabilitation Act was preempted by the ATSA. The Commission initially found that it has jurisdiction over the complaint. Further, the Commission stated that, in this case, complainant was not challenging an ATSA mandated qualification standard, but was alleging that he was discriminated against when he was denied reasonable accommodation, placed on administrative leave, and terminated from his position. Michael D. Kimble v. Department of Homeland Security, EEOC Appeal No. 0120072195 (November 24, 2009).
Settlement Agreement Void: No Meeting of the Minds. Complainant and the agency entered into a settlement agreement that provided for the agency to “instruct” two named management officials to refrain from discussing complainant’s work history, and physical and mental well being with other employees or supervisors. Complainant alleged that the agency breached the agreement when one of the named officials discussed her medical information and how to post her time card with her supervisor. The agency noted that the official was complainant’s prior supervisor, and that business necessity required him to discuss complainant’s medical and employment information. On appeal, the Commission noted that it appeared the parties did not come to a meeting of the minds regarding the clause at issue. Specifically, the agency interpreted the clause to mean that the officials may not discuss complainant’s information except when there is a business necessity to do so. Complainant, on the other hand, seemed to believe the officials would never discuss anything about her under any circumstances. The Commission determined that the matter should be remanded to allow complainant the opportunity to void the agreement if she believed the officials were not permitted to discuss her information under any circumstances, including the processing of her workers’ compensation claim. The Commission noted that, should the underlying complaint be reinstated for further processing, the parties would be returned to the status quo, and complainant would be required to return any benefits received pursuant to the settlement agreement. Tamberly K. Robinson, aka Tamberly K. Calame v. Department of Veterans Affairs, EEOC Appeal No. 0120092289 (October 9, 2009).
Agency Breached Settlement Agreement When if Failed to Reimburse Complainant. The settlement agreement provided that complainant would be reimbursed for a specific number of days claimed. The agency determined that although complainant had not yet been reimbursed, the adjustments were in the process of being made. The Commission found no evidence in the record indicating that complainant has been reimbursed. In addition, on appeal, complainant asserted that he still has not been reimbursed. Thus, the Commission found that the agency breached the settlement agreement and remanded the matter to the agency to implement the terms of the settlement agreement. John B. Cychosz v. United States Postal Service, EEOC Appeal No. 0120093108 (November 12, 2009).
(In the following cases, the Commission found complainant’s claims to be cognizable. –Ed.)
Bertha Gonzalez v. United States Postal Service, EEOC Appeal No. 0120082632 (November 27, 2009). (complainant’s claim that she was sent home and not permitted to work after refusing a modified job offer states a claim; Commission found that complainant was alleging that the agency refused to provide her with reasonable accommodation for her injury, and the agency cannot use a workers’ compensation decision as reason for not providing reasonable accommodation).
Chris Sanford v. Department of Veterans Affairs, EEOC Appeal No. 0120093442 (November 27, 2009). (complainant’s claim that the Associate Director grabbed him by the arm, turned him around, angrily backed complainant into a desk, and screamed at him, although it was only a single occurrence, was sufficiently severe to sate a claim of harassment based on sex (male). Commission also found that this incident was reasonably likely to deter complainant from engaging in protected activity).
John E. Tatum v. Department of Justice, EEOC Appeal No. 0120093082 (October 22, 2009). (agency’s assessment of claim impermissibly goes to merits of complaint; complainant filed a formal EEO complaint alleging that he was discriminated against on the basis of his religion when he was escorted from an Islamic program for inmates; agency dismissed the complaint, asserting that complainant attended the event while off duty and without prior approval.) And see Michael Haskins v. Department of Veterans Affairs, Appeal No. 0120092650 (October 15, 2009) (agency’s articulated reason for the termination of complainant’s health coverage, that complainant was terminated from employment, goes to the merits of the complaint and is irrelevant to the procedural issue of whether it states a claim; complainant alleged he was discriminated against when his health coverage was terminated); James M. Kuhns v. Department of the Air Force, Appeal No.0120093197 (October 14, 2009) (agency’s assertion that complainant (54) was in the same general age group as the selectee (51) goes to the merits of complainant’s claim that he was discriminated against when he was not selected for a position without a proper investigation).
Charles Anderson v. Department of the Navy, Appeal No. 0120092413 (October 16, 2009) (complainant’s claim that he was required to submit the report from a fitness for duty examination to the agency’s security personnel states a claim; Commission has the authority to review an agency’s decision to initiate a review of a security clearance status and to review whether the grant or denial of a security clearance was done in a nondiscriminatory manner).
Shaundra Y. Sibert v. Department of Health & Human Services, EEOC Appeal No. 0120073641 (October 8, 2009) (complainant raised a viable claim of discriminatory harassment including receipt of a negative performance review, negative comments, uneven disciplinary actions, double standards regarding leave requests and restrictions, and exclusion from budget meetings and e-mails pertaining to her job; agency mistakenly framed complainant’s complaint as incorporating only a single incident).
Yu Lin v. United States Postal Service, EEOC Appeal No. 0120092308 (September 29, 2009) (complaint of hostile environment viable where complainant alleged her supervisor told her that he thought she was in love with her male coworker, repeated the comments to the co-worker in complainant’s presence, stated that the co-worker should give complainant “some sausage” and told complainant that he, the supervisor, liked Asian women and that complainant was “hot”).
Leroy Bell v. United States Postal Service, EEOC Appeal No. 0120082317 (August 28, 2009) (complainant stated a valid claim of disparate treatment with regard to work assignments when he alleged that for a three and one-half month period the agency required him to hand carry materials when a machine was unavailable, while Caucasian employees in his position were not required to do the same).
Delores Jones v. United States Posta Service, EEOC Appeal No. 0120091907 (August 26, 2009) (receipt of a notice of seven-day suspension, even though it was rescinded after more than 3 months following a grievance procedure, was sufficient to deter protected activity and therefore stated a claim of reprisal when considered with the supervisor’s statement that the notice had “served its purpose”).
Mary Baldwin v. Department of the Air Force, 0120092108 (August 26, 2009) (a below standard mid-term evaluation is reasonably likely to deter protected activity such that a complaint regarding that action states a claim of reprisal).
Deborah Jenkins v. United States Postal Service, EEOC Appeal No. 0120091647 (August 25, 2009) (a threatening incident by a co-worker, together with the agency’s decision to allow the co-worker to return to work in complainant’s area was sufficiently severe and pervasive to state a claim of harassment).
(In the following case, the Commission affirmed the agency determination that the complainant failed to state a claim. –Ed.)
Taleha M. Morris v. United States Posta Service, EEOC Appeal No. 0120092931 (October 22, 2009), request for reconsideration denied EEOC Request No. 0520100133 (February 4, 2010); Leah D. Vue v. United States Postal Service, EEOC Appeal No. 0120092933 (October 22, 2009), request for reconsideration denied EEOC Request No. 0520100131 (January 15, 2010). (complainants’ allegations that they were discriminated against when another employee was converted to a full-time position in settlement of that employee’s EEO complaint fails to state a claim when there was no showing that the agreement was executed in bad faith or that the agreement was a discriminatory attempt to bestow unequal benefits to the other employee).
Grant of Summary Judgment Reversed where Genuine Issues of Material Fact Present. Complainant, a Customs and Border Protection Officer, filed a formal EEO complaint alleging that he was subjected to a hostile work environment because of his race (Asian), national origin (Chinese), and in reprisal for prior EEO activity. Specifically, complainant stated that his training was delayed, he was denied two different reassignments, and he was ridiculed by Firearms Instructors and challenged in a threatening manner about his absences. At the conclusion of the investigation, complainant timely requested a hearing, but the AJ determined that the complaint did not warrant a hearing, finding that the agency presented legitimate, non-discriminatory reasons for its actions. On appeal, the Commission agreed that there were no genuine issues of material fact with regard to the delay of training, and reassignment to an Intermediate Force Instructor position. However, the Commission found that genuine issues of material fact existed with respect to the agency’s proffered reasons for not reassigning complainant to a Firearms Instructor position. The Commission noted a disparity in the explanations for the action. In addition, it was unclear whether the action was attributable to a determination by the Firearms Division, which the Commission indicated would also encompass the allegations of harassment by the instructors. The Commission remanded the matter for a hearing before an Administrative Judge. Howard J. Sun v. Department of Homeland Security, EEOC Appeal No. 0120092358 (November 18, 2009), request for reconsideration denied, EEOC Request No 0520100174 (February 17, 2010).
Summary Judgment Inappropriate Where the Record Does Not Contain Documentation Necessary for Complainant to Prove Discrimination. Complainant worked for the agency as a Physical Security Specialist, and applied for the same position in another division. Complainant was among the top eight candidates and was interviewed for the position. Complainant provided the names of three references in his application. The Director of Employment, however, contacted complainant’s supervisor who informed him complainant needed to work on his writing skills. Complainant’s supervisor also opined that complainant did not have the ability to manage a nation-wide policy office, had some issues with strategic thinking, had problems reaching compromise, and had a dogmatic approach. Complainant was among the top three candidates forwarded to the selecting official; however, the interview panel recommended that the selecting official not interview complainant and complainant was not selected for the job.
Over complainant’s objections, the Administrative Judge granted the agency’s motion for a decision without a hearing, and found that complainant failed to prove that he was discriminated against as alleged. On appeal, the Commission determined that there was insufficient evidence in the record to support the issuance of a decision without a hearing. Specifically, because complainant alleged that he was not selected for the position, the applications of the candidates, interview notes, and ranking sheets were critical to the investigation of whether discrimination occurred. Although complainant requested the ranking sheets and interview notes during the discovery period, the agency failed to provide that information, indicating only that it was attempting to retrieve the documents. Further, the Commission noted that the record was devoid of any of the documents relating to the candidates’ applications, or evidence relating to how the interview panel determined each candidate’s qualifications. While the agency relied upon the statements of complainant’s supervisor, complainant alleged that he had repeatedly engaged in protected activity, and the supervisor’s statements were made in retaliation for that activity. The Commission concluded that the record failed to contain the requisite documentation for complainant to demonstrate that his qualifications were of such merit that absent discrimination or retaliation, he would have been selected for the position. The matter was remanded for an administrative hearing. Frederick W. Geary, Jr. v. Department of Agriculture, EEOC Appeal No. 0120071295 (October 22, 2009).
Hostile Work Environment Claim Timely Raised. Complainant filed a formal EEO complaint alleging that he was subjected to harassment and a hostile work environment when his supervisor inappropriately discussed the denial of his leave request, management failed to act appropriately after he reported negative statements made to him by a customer, his schedule was changed, his requests for leave were denied, and management harassed him about his disabilities by constantly telling him to work at a quicker pace, monitoring the speed of his work, and publicly chastising him in the presence of his co-workers. The agency investigated the issue concerning complainant’s leave requests, but dismissed the remaining allegations. On appeal, the Commission found that the agency improperly dismissed the first three issues for failure to timely contact an EEO Counselor. The Commission stated that the allegations make up a hostile environment claim, and comprise incidents that are clearly related to each other and to the matter concerning complainant’s requests for leave. In addition, the Commission found that the last allegation states a cognizable claim of harassment and is factually tied to the other issues raised. Mark Griffin v. United States Postal Service, EEOC Appeal No. 0120092429 (October 20, 2009).
EEO Counselor Contact Timely. Complainant alleged that she was subjected to discrimination on the basis of age when her work hours were reduced and student hires were given additional hours. The agency did not state the date of the alleged discriminatory event, but appeared to rely on September 21, 2008, the date that complainant was apparently given a personnel form reducing her work hours. The Commission noted that complainant alleged that the students' hours were increased in November and December 2008, and that she was not likewise given the opportunity to work extra hours. As such, the Commission found that her counselor contact was timely. Darlene Jackson v. Department of Defense, EEOC Appeal No. 0120092427 (August 18, 2009).
Claim of Discriminatory Compensation Timely Under the Lilly Ledbetter Fair Pay Act. Complainant alleged that from April 2003, until the date of his retirement in 2008, his job description and pay did not accurately reflect his duties and he was unable to get his position properly reviewed and upgraded. The agency dismissed the claim for untimely EEO counselor contact, noting that the alleged discriminatory act occurred on April 24, 2003, but complainant did not contact an EEO counselor until November 6, 2008. Regarding the ADEA, the Lilly Ledbetter Fair Pay Act provides: “For purposes of this section, an unlawful practice occurs, with respect to discrimination in compensation in violation of this Act, when a discriminatory compensation decision or other practice is adopted, when a person becomes subject to a discriminatory compensation decision or other practice, or when a person is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice." The Commission noted that complainant was receiving allegedly discriminatory paychecks during the period up to and including 45 days prior to his EEO counselor contact. Thus, the Commission concluded that complainant’s counselor contact was timely. Randy D. Rostad v. Department of Defense (Army and Air Force Exchange Service), EEOC Appeal No. 0120092096 (August 18, 2009).
(The following article is not intended to be an exhaustive or definitive discussion of a complex area of law. –Ed.)
The Commission has continually worked to ensure that the federal sector complaint process is administered fairly and efficiently. As part of this continuing effort, the Commission empowered its Administrative Judges (AJs) to impose sanctions, in appropriate circumstances, against parties who fail to fully and timely respond to AJ orders or requests for information without showing good cause. But beginning with the Commission’s 2007 decision in Gray v. Department of Defense,1 the circumstances under which AJs could appropriately impose the ultimate sanction, a default judgment, became more limited. This eventually raised not only practical concerns about timeliness and efficiency, but also fundamental concerns about fairness and the integrity of the EEO process itself. A trilogy of cases in 2009, addressed these concerns by affirming the AJ’s use of default judgments in cases that reemphasize the Commission’s commitment to preserving the integrity of the EEO process.
Authority for AJs to Issue Default Judgments as Sanctions
The statutory authority for AJs to issue default judgments as sanctions resides in section 717 of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination by federal agencies.2 This statute allows the Commission to issue “rules, regulations, orders, and instructions” that are deemed by the Commission “necessary and appropriate to carry out its responsibilities” in enforcing the prohibitions on unlawful employment discrimination.3 Federal agencies must follow these rules, regulations, orders, and instructions.4 The provision also delegates to the Commission the authority to enforce the statute “through appropriate remedies . . . as will effectuate the policies of this section.”5
Pursuant to this statutory authority, the Commission promulgated the most recently applicable regulations in 29 C.F.R. Part 1614.6 Specifically, 29 C.F.R. § 1614.109(f)(3) provides:
When the complainant, or the agency against which a complaint is filed, or its employees fail without good cause shown to respond fully and in timely fashion to an order of an administrative judge, or requests for the investigative file, for documents, records, comparative data, statistics, affidavits, or the attendance of witness(es), the administrative judge shall, in appropriate circumstances:
(iv) Issue a decision fully or partially in favor of the opposing party . . . .
The Commission’s authority to issue sanctions under 29 C.F.R. § 1614.109(f)(3) was directly challenged in Matheny v. Department of Justice.7 In that case, the agency argued that the imposition of sanctions by the AJ which entered a default judgment for the complainant violated the principle of sovereign immunity. In the underlying decision, the Commission upheld an AJ’s issuance of a default judgment as a sanction against the agency for failing to comply with numerous orders and requests from the AJ.8 The Commission explained that the agency’s failure to complete an EEO investigation 15 months after the end of the 180-day time frame was egregious enough to warrant a default judgment as a sanction. In addition, the Commission concluded that the statutory language set forth in 29 C.F.R. § 1614.109(f)(3) authorizes AJs to impose sanctions on federal agencies. The Commission reasoned that the authority to impose sanctions is necessary for the Commission to effectively enforce the prohibition on employment discrimination in the federal workplace because the Commission cannot subpoena other agencies, and sanctions ensure that federal agencies will comply with the administrative process.
The Factors for Issuing Default Judgments as Sanctions and the Narrowing of Matheny
In Gray v. Department of Defense,9 the Commission moved away from the open-ended inquiry of Matheny by requiring AJs to formally consider five factors when determining whether a party’s non-compliance warranted a sanction and also what sanction is appropriate: (1) the extent and nature of the non-compliance; (2) the justification presented by the non-complying party; (3) the prejudicial effect of the non-compliance on the opposing party; (4) the consequences resulting from the delay in justice; and (5) the effect on the integrity of the EEO process. In evaluating these factors, the Commission counseled that sanctions are designed to serve the purpose of “deterring the [offending party] from engaging in similar conduct in the future, without being overly harsh in light of the nature of the offense.”10
The Commission in Gray determined that the AJ abused her discretion in issuing a default judgment as a sanction against the agency for failing to timely complete the EEO investigation three months beyond the 180-day regulatory time frame.11 The Commission distinguished Gray from Matheny by reasoning that the agency’s non-compliance in Matheny was far more egregious and deserving of a default judgment. First, the agency in Matheny delayed completing the investigation for 15 months beyond the 180-day time frame while the delay in Gray was only three months. Second, the agency in Matheny responded only sporadically to the AJ over the 15-month period. Third, the AJ in Matheny specifically found that the limited evidence before her supported the complainant’s claims of discrimination.
Because the non-compliance in Gray did not heavily weigh on the last three factors, parties began to interpret Gray as effectively narrowing Matheny, thereby limiting the circumstances in which AJs could appropriately issue default judgments as sanctions for failing to timely complete investigations or respond to AJs.
The Sanctions Cases of 2009: A New Emphasis on the Integrity of the EEO Process
In 2009, the Commission issued three decisions that considered how different agency infractions should be weighed under the Gray factors. In Royal v. Department of Veterans Affairs,12 the Commission upheld an AJ’s issuance of a default judgment in favor of complainant as a sanction because the agency did not initiate or complete an EEO investigation within the 180-day regulatory time frame. The Commission rejected the agency’s assertions that the delay had no adverse affect on complainant’s case and was partially caused by financial constraints.
In applying the Gray factors, the Commission held that “in the case where an agency has not initiated an investigation that could reasonably be completed within the 180-day time frame, the [fifth] factor, the effect on the integrity of the EEO process, is paramount.” The Commission held that the sanction of a default judgment was appropriate because the agency had not begun its investigation until 192 days after complainant had filed the formal complaint. The Commission distinguished Royal from Gray by noting that the agency in Gray had “engaged in actions showing intent to comply with the regulation specifying that an investigation should be completed in 180 days.”
The Commission then addressed the consequences of a default judgment in terms of crafting the appropriate remedy. The Commission noted that, following a decision to issue a default judgment, an AJ would need to decide if there was sufficient evidence to establish complainant’s right to relief. For example, the establishment of the elements of a prima facie case would be sufficient to show such a right. The Commission stated that, in the absence of a report of investigation, the complainant should be able to provide the request for counseling, the EEO Counselor’s report, the formal complaint, and the agency’s letter accepting the complaint. In addition, the AJ could ask for more information or take limited testimony from the complainant. In the remedy phase, the complainant would provide evidence regarding entitlement to such relief as back pay and compensatory damages.
In Cox v. Social Security Administration,13 the Commission again upheld the AJ’s decision to issue a default judgment in favor of complainant as a sanction. The Commission concurred with the AJ’s determination that the report of investigation was inadequate, given the lack of documentation in the record, and rejected the agency’s argument that an outside investigative contractor absolved the agency from being responsible for ensuring a complete and timely investigation. The Commission also concurred with the AJ’s determination that the agency failed to fully comply with the AJ’s orders or respond to discovery requests in a timely manner.14
Citing Royal, the Commission warned that the effect of the non-complying party’s actions on the integrity of the EEO process should not be underestimated when tailoring sanctions. The Commission determined that affirming the AJ’s issuance of a default judgment “will effectively emphasize to the agency the need to comply with the AJ Orders in a timely manner,” and ensure that any report of investigation that the agency produces “is adequately developed from which to make a decision on the merits of complainant’s complaint.” Citing Royal, the Commission found that complainant was entitled to the relief ordered by the AJ because she established a prima facie case.
In Gryder v. Department of Transportation,15 the AJ assigned to the case issued an Acknowledgment Order in November 2006 and a separate Scheduling Notice and Order that directed the parties to submit a pre-hearing report, and set a date for the pre-hearing conference. The agency failed to appear at the pre-hearing conference and did not submit a pre-hearing report. The agency also failed to respond to any of the numerous motions filed by the complainant with the AJ, including various discovery requests, although the agency received copies of these filings. Meanwhile, in December 2006, the agency filed a Motion to Stay Discovery and All Proceedings pending a ruling on complainant’s civil action in federal court. The AJ never ruled on the agency’s motion. The AJ subsequently issued an Order to Show Cause why the agency should not be subject to sanctions. In July 2007, the AJ imposed sanctions against the agency by issuing a default judgment in complainant’s favor.
On appeal, the Commission found disingenuous the agency’s assertion that it was merely awaiting the AJ’s ruling on its motion to stay, because it failed to take proactive measures to inquire whether the AJ had issued any additional orders or ensure receipt of AJ notifications. Nevertheless, the Commission determined that the AJ abused his discretion by issuing a default judgment as a sanction against the agency. The Commission held that the decision to impose the default judgment when the federal court had not yet decided whether the matter before it was settled “was premature and not in the interests of justice.” The Commission further held that the AJ should have first ruled on the agency’s motion to stay before imposing a sanction. In the interest of judicial economy, the Commission vacated the AJ’s decision for a determination on whether the matter that remained pending in federal court addressed the same matter raised in complainant’s complaint. In the event that the civil action did not involve the same matter, the Commission ordered the case to be returned for a hearing and imposed an alternative sanction limiting the agency’s ability to use documents in the record during adjudication of the complaint.
The Commission issued a trilogy of cases in 2009 to address concerns about the fairness and integrity of the EEO process. The cases reinterpreted how several types of non-compliance actions should be evaluated under the Gray factors, particularly the effects on the integrity of the EEO process, when determining the appropriateness of default judgment sanctions. The cases stressed that parties need to respect time frames, especially those relating to the investigative and discovery process, because non-compliance can negatively affect the quality of the reports of investigation and ultimately hamper the Commission’s ability to decide the merits of discrimination complaints. At the same time, parties should timely comply with AJ orders, and AJs, in turn, should timely respond to motions filed by the parties. Parties, especially federal agencies, should take proactive measures to inquire about whether the AJ has issued additional orders or to ensure receipt of AJ notifications. Finally, even if an AJ issues a default judgment in favor of a complainant as a sanction against an agency, the complainant must present evidence that satisfies the court to establish a right to relief.
11 The Commission found that the AJ instead should have issued a more narrowly tailored sanction to deter the agency’s conduct without being overly harsh in light of the offense, such as prohibiting the agency from using ROI depositions to support motions to dismiss or for summary judgment, or by not allowing the agency to rely on ROI affidavits in lieu of witnesses who are not available to testify at a hearing.
14 Although the AJ imposed sanctions against the agency, in part, for filing an untimely response to her Show Cause Order, the Commission held that the agency filed a timely response to the Show Cause Order The Commission nonetheless concurred with the AJ’s findings with regard to compliance with discovery requests, noting that the agency failed to even partially comply.