Volume XIII, No. 2
Office of Federal Operations
Spring Quarter 2002
Disability Law - Direct Threat
Disability Law - Medical Examination
Disability Law - Medical Records
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: Joan Hannan
Writers: Arnold Rubin, Dann Determan, Lori Grant, Navarro Pulley
Available in accessible formats for persons with disabilities. The Digest is now available online through EEOC's homepage at www.eeoc.gov. If you wish to receive a copy in print, you must send a request, in writing, to Arnold Rubin, EEOC, Office of Federal Operations, 1801 L Street, N.W., Washington, D.C. 20507.
Direct evidence found. The agency found direct evidence of national origin (Korean) discrimination where the selecting official said that complainant would never be promoted because her accent made her too difficult to understand. The agency found no evidence that complainant's accent would have interfered with her ability to perform a Budget Analyst position. On appeal, the Commission found that the agency failed to meet its burden of showing, by clear and convincing evidence, that it would not have promoted complainant during the period at issue even absent discrimination. The Commission noted that the agency had ample opportunity to produce such evidence. EEOC noted that a mere assertion of a legitimate motive without additional evidence is insufficient in direct evidence cases such as this one. As part of relief provided to complainant in this case, the Commission ordered promotion with back pay. Stone v. Department of the Treasury (Bureau of Public Debt), EEOC Appeal No. 01A02572 (July 6, 2001), request to reconsider denied, EEOC Request No. 05A11013 (January 10, 2002).
The agency destroyed records relevant to the instant claim. The Commission decided that the agency had adequate notice of the claim, yet violated its obligation to maintain the records. The record destruction, along with other cited reasons, justified sanction by imposition of an adverse inference against the agency, the Commission ruled. Based on the adverse inference, the Commission determined that the record failed to show a legitimate nondiscriminatory reason for the agency's action, leading to a conclusion that complainant prevailed in her claim. Cottrell v. Department of Transportation, EEOC Request No. 05991163 (January 16, 2002).
Complainant entitled to attorney's fees. Because complainant had prevailed in her claim that the agency had breached a settlement agreement, she was entitled to an award of attorney's fees for work done in connection with her appeal. Spriesterbach v. United States Postal Service, EEOC Request No. 05990158 (November 23, 2001).
Reduction in fees proper. The Commission granted complainant's RTR and modified the previous decision to include an award of all fees reasonably incurred in obtaining EEOC's favorable decision on appeal. However, the Commission found reasonable the previous decision's 10% reduction in fees where the fee petition submitted to the agency failed to break out the compensable and non-compensable work done by complainant's attorney. Gray v. United States Postal Service, EEOC Request No. 05981074 (October 4, 2001).
Burden of proof improperly shifted. The Commission found that the EEOC Administrative Judge (AJ) had incorrectly placed the burden of proof on the agency to show it did not discriminate against complainant, as in indirect evidence cases such as this, the agency's only obligation was to state the reasons for its action. The Commission found that the agency's proffer was sufficient to satisfy its burden of production to articulate a legitimate, nondiscriminatory reason for complainant's nonselection (e.g., she performed poorly in her interview). Flynn-DeGroff v. United States Postal Service, EEOC Appeal No. 07A0039 (November 23, 2001).
Complaint reinstated. A district court dismissed complainant's class action on the grounds that she had failed to exhaust her administrative remedies. Because the civil action was no longer pending, EEOC ordered the administrative class complaint reinstated absent evidence that the civil action had been dismissed with prejudice. Artis, et al. v. Federal Reserve System, EEOC Request No. EEOC Request No. 05960266 (August 10, 2000).
Continuing violation doctrine explained. To state a timely raised continuing violation claim, a complainant must allege facts that are sufficient to indicate that he or she may have been subjected to an ongoing unlawful practice which continued into the 45-day period for EEO counselor contact. That the complainant had a reasonable suspicion of discrimination more than 45 days before the contact will not preclude acceptance of an otherwise timely claim of ongoing discrimination. Anisman v. Department of Treasury, EEOC Request No. 05A00283 (April 12, 2001).
Related acts. In late 1998, complainant alleged discriminatory denial of overtime "since 1997 and continuing." Her claim was dismissed by the agency under a reasonable suspicion standard. The Commission found that the denial of overtime was identical throughout the period of the claim, and ruled that complainant established a continuing violation. Crosby v. United States Postal Service, EEOC Appeal No. 01996244 (October 4, 2001).
Continuing violation claim not available. The Commission affirmed the agency's dismissal of complainant's three complaints and rejected his argument that the complaints constituted a continuing violation. EEOC noted that complainant had filed some 20 discrimination complaints since 1990, more than half being filed since he resigned in 1994. Complainant argued that his EEO complaints showed a discriminatory course of conduct by the agency. Held: Where, as here, none of the claims are dismissed for reasons of timeliness, but, instead, on other grounds, a claim of continuing violation does not lie. Li v. Department of the Navy, EEOC Appeal Nos. 01993099, 01993956, 01996057 (August 31, 2001).
Not a continuing violation. In December 2000, complainant initiated EEO Counselor contact to allege that she had been denied a promotion/classification since August 2000. The claim was dismissed as untimely, and EEOC affirmed the dismissal. EEOC found that the most recent discriminatory event identified by complainant occurred in August 2000, and that she identified no acts of purported discrimination occurring within 45 days of her initial EEO contact. Anthony v. Department of the Navy, EEOC Appeal No. 01A13076 (July 30, 2001)
Direct Threat. In affirming the agency's decision, the Commission found that the agency acted reasonably when it issued complainant a Letter of Exclusion based on its determination that it could not reasonably accommodate complainant's disability (delusional disorder), without posing a direct threat, i.e., a significant risk of substantial harm which cannot be eliminated or reduced by reasonable accommodation. EEOC noted that such determinations had to be based on individualized assessments. Parker, Jr. v. Department of the Navy, EEOC Appeal No. 01981917 (November 27, 2001).
Improper fitness for duty (FFD) examination. Evidence showed that complainant over a period of years took notes on and criticized the actions of coworkers, causing friction, stress, and other problems in the workplace. Agency managers did not discipline complainant for his conduct and instead directed him to undergo a psychiatric FFD. The Commission concluded that the FFD was unlawful. The agency failed to show that the medical inquiry was job-related and consistent with business necessity, stated the Commission, since it failed to show that it had a reasonable belief that complainant would be unable to perform essential functions or would pose a direct threat. The Commission also observed that limits on disability-related inquiries and medical examinations apply to all employees, not just those with disabilities. Clark v. United States Postal Service, EEOC Appeal No. 01992682 (November 20, 2001).
Medical records. The agency violated the Rehabilitation Act by disclosing medical information pertaining to complainant in a manner that did not conform to EEOC regulations. The disclosure warranted an award to complainant of $2,000 in compensatory damages. Brunnell v. United States Postal Service, EEOC Appeal No. 07A10009 (July 5, 2001).
Dismissal improper absent notice and insufficient record. An AJ granted complainant's request to withdraw for 90 days her request for a hearing. Complainant was told that if she failed to renew her request within 90 days the agency could dismiss her complainant for failure to proceed. Shortly after the 90 day period expired, the agency dismissed the complaint for failure to cooperate. On appeal, the Commission reversed the dismissal, ruling that an agency may not dismiss a complaint for failure to cooperate without the 15-day notice required under EEOC's regulations. In addition, the Commission restated the principle that dismissal for failure to cooperate is permitted only in cases where there is in sufficient information on which to base an adjudication and the complainant has engaged in delay or contumacious conduct. Schultze v. Department of the Army, EEOC Appeal No. 01995369 (July 11, 2001).
Not a final decision. Complainant raised a claim of discrimination in a negotiated grievance proceeding. He subsequently filed an EEO complaint which was dismissed. The Commission agreed with the agency that the grievance decision was not a "final decision of the agency" because complainant had the right to submit his grievance to the next level. Lee v. Department of Transportation, EEOC Request No. 05990592 (August 3, 2000).
Noose in workplace creates offensive work environment. Complainant, a Black Maintenance Mechanic, claimed discrimination when he found a hangman's noose hanging near his toolbox. An AJ summarily found for the agency. The AJ found that complainant failed to establish that this one incident rose to the level of a hostile work environment, and that even if complainant had been subjected to a hostile work environment, there was no basis to impute liability to the agency, as agency officials took prompt remedial action. The agency, among other things, suspended the white employee who admitted he had tied the noose, and reiterated its policy of zero tolerance for violence. The Commission disagreed with the AJ that the noose incident was not severe or pervasive enough on its own to constitute a hostile work environment. The Commission noted that the noose was such a severely violent symbol that complainant reasonably felt threatened by his discovery. However, the Commission agreed with the AJ's finding that complainant failed to establish a basis for imputing employer liability for his co-worker's actions. Posey v. United States Postal Service, EEOC Appeal No. 01986619 (July 10, 2001).
Constructive discharge case kept with EEOC for judicial economy. Issues concerning termination and discharge ordinarily fall within MSPB's jurisdiction. This case contained a constructive discharge claim which complainant did not articulate until after she filed her formal complaint. The agency failed to address the claim in its decision on the merits. Since this complainthad been pending in the EEO process for several years, EEOC decided to retain jurisdiction. The Commission cited past holdings where complaints were firmly enmeshed in the EEO forum, and where it would better serve the interest of judicial economy to retain jurisdiction rather than remand the case for consideration to the MSPB process.Lyons v. Department of Veterans Affairs, EEOC Request No. 05981169 (July 30, 2001).
More than make-whole relief. Complainant's fellowship was
discriminatorily terminated. The relief ordered in a prior
Commission decision had included, among other things, either
renewal of the fellowship or conversion to a permanent position.
The Commission granted the agency's RTR, which argued that the
previous decision's order was in excess of make whole relief. The
agency contended that it should have the additional option to deny
both the renewal and the conversion. The Commission agreed and
modified its order accordingly. Packard and Komoriya v.
Department of Health and Human Services (Food and Drug
Administration), EEOC Request Nos. 05A10499 and 05A10506
(November 23, 2001).
Two year limit on back pay. The back pay period ordered
in a prior decision was modified on RTR on the Commission's own
motion. The Commission stated that back pay must be limited to two
years prior to the date on which the complaint was originally
filed, in accordance with Title VII of the Civil Rights Act of
1964, as amended. Stone v. Department of the Treasury (Bureau
of Public Debt) EEOC Request No. 05A11013 (January 10,
2002). No qualifiers limit the scope of retaliation provisions.
Statutory retaliation clauses prohibit any discrimination that is
reasonably likely to deter protected activity. Battaglia v.
Federal Deposit Insurance Corporation, EEOC Appeal No.
01985358 (July 30, 2001), citing EEOC's Compliance Manual on
Retaliation. Agency action reasonably likely to deter protected
activity. Complainant claimed that, after he filed his EEO
complaint, his performance rating was reduced. He also averred that
agency officials indicated that complainant and those who testified
on his behalf were "whiners" and "crybabies." EEOC held that such
treatment, when engaged in by management, was reasonably likely to
deter the charging party or others from engaging in protected
activity. Pallante v. Department of Justice (Immigration and
Naturalization Service), EEOC Appeal No. 01A04996 (July 6,
2001). See also McPherran v. Department of the Treasury,
EEOC Appeal No. 01A11357 (August 2, 2001) (adverse actions need not
qualify as "ultimate employment actions" or materially affect the
terms and conditions of employment to constitute retaliation). Not proper to interpret agreements as providing indefinite
employment in exact position. Complainant was reassigned as
called for in a settlement agreement, and held the new position for
more than a year before the position was reclassified and
ultimately downgraded. The Commission found that the change in her
position was not a breach of the agreement, holding that where an
individual bargains for a position without any specific terms as to
length of service, it would be improper to interpret the reasonable
intentions of the parties to include employment in that exact
position ad infinitum. Buck v. Department of Veterans
Affairs, EEOC Appeal No. 01A12839 (July 6, 2001). Substantial compliance. The Commission found that the
agency had failed to take any action to convene a meeting as it had
promised to do in the settlement agreement. However, EEOC also
found that the agency discovered its oversight two weeks later, and
immediately contacted complainant in order to hold the required
meeting. Held: the agency substantially complied with the
agreement. The Commission found no evidence of bad faith by the
agency; that it had immediately attempted to cure the breach; that
it had repeatedly attempted to schedule a meeting and that it was
still willing to do so. Tshabalala v. Department of
Agriculture, EEOC Appeal No. 01A10068 (July 6, 2001). Timely allegation of breach. Reversing the Navy's
decision that complainant's breach claim was untimely, the
Commission noted that complainant had continuously sought to obtain
agency compliance with the settlement agreement. Lambert v.
Department of the Navy, EEOC Appeal No. 01A02716 (February 7,
2001). Changes in circumstances. Complainant claimed in 1996
that certain duties specified in a 1988 settlement agreement were
no longer provided to him. EEOC found that complainant failed to
show that these duties were still relevant and not obsolete, and
found no breach. Bruce v. United States Postal Service,
EEOC Appeal No. 01995967 (June 21, 2001). New evidence not generally accepted on appeal. As a
general rule, no new evidence will be considered on appeal unless
there is an affirmative showing that the evidence was not
reasonably available prior to or during the investigation or during
the hearing process. Presley v. United States Postal
Service, EEOC Request No. 05980656 (September 20, 2001),
citing MD-110, 9-15. Material facts at issue. The Commission vacated
and remanded the agency's final decision rejecting the AJ's finding
of discrimination without a hearing. Citing several genuine issues
of material fact that were present in the case, the Commission held
that the AJ improperly issued a decision without a hearing, and
ordered the agency to submit the case to the appropriate EEOC
office for a hearing on the merits. Dotson v. Department of
Veterans Affairs, EEOC Appeal Nos. 07A10016, 01A10761 (August
8, 2001) Summary judgment improper. Under a de novo
standard of review, the Commission concluded that it was error for
an AJ to grant summary judgment in favor of complainant on an
unasserted Equal Pay Act (EPA) claim, without giving the agency an
opportunity to be heard. As to complainant's Title VII claim, an
evidentiary hearing should have been held inasmuch as the record
contained evidence supporting both sides of the issue as to whether
the agency's nondiscriminatory reasons for not promoting
complainant were a pretext for discrimination. Wiley v.
Department of the Treasury, EEOC Appeal No. 01972118 (June 27,
2001). Hearing required. The Commission found that the AJ erred
in concluding that there were no genuine issues of material fact,
and in rendering summary judgment. Noting that complainant's
evidence must be believed at the summary judgment stage, and all
justifiable inferences must be drawn in her favor, the Commission
found that the attitude of an official, reflected in a memorandum
that he wrote, could indicate that complainant was subjected to a
hostile work environment based on discrimination. Because the
official played such a central role in the incidents at issue, the
Commission ruled that there was a need for "strident-cross
examination," and a need to weigh conflicting testimony. The
decision discusses and defines the concept of 'genuine issue of
material fact.' The judgment was reversed and the complaint was
remanded for a hearing. Dare v. Department of the Air
Force, EEOC Appeal No. 01984186 (July 26, 2001). Reasonable suspicion imputed. Reasonable
suspicion of discrimination was imputed to the complainant when he
was issued a Notice of Removal and he entered into a last chance
agreement. Covarrubias v. United States Postal Service,
EEOC Appeal No. 01A11219 (July 6, 2001), RTR denied, EEOC Request
No. 05A10953 (October 19, 2001). Reasonable suspicion not imputed. Although cleared for
work with medical restrictions, complainant for a period of time
was denied the opportunity to return to work. He initiated EEO
counseling over 45 days after he returned to work, but within 45
days of the time when he became aware that a co-worker was allowed
to work within his restrictions and was also allowed to work
overtime. The Commission was persuaded that complainant first
developed a reasonable suspicion of discrimination at the point
when he became aware of the treatment of the coworker, and found an
extension of the time limit for initiating EEO contact was
warranted. Flores v. United States Postal Service, EEOC Appeal
No. 01A13193 (July 30, 2001). Inadequate proof of posting. The Commission found that
the agency had failed to meet its burden of providing sufficient
evidence to support a determination that the agency had given
complainant notice of the applicable time limits for initiating
Counselor contact. The Commission cited EEOC precedent that a
generalized affirmation attesting to posted EEO information, absent
specific evidence that the poster contained notice of the time
limits, was insufficient to conclude that complainant had
constructive knowledge of the time limits for EEO Counselor
contact. The Commission also noted that the EEO poster submitted by
the agency indicated a time limit of 30 days, whereas the time
limitation had been extended to 45 days in EEOC's regulations that
went into effect in October 1992. Scott v. United States Postal
Service, EEOC Appeal No. 01A02092 (July 11, 2001). Agency ordered to address waiver issue in ADEA
settlement. A complaint claiming age discrimination was
settled. Complainant subsequently claimed that the agency had
breached the agreement, asserting among other things that he had
not entered into the agreement voluntarily and did not completely
understand its terms and provisions. On appeal, the Commission
found applicable the provisions of the Older Workers Benefit
Protection Act (OWBPA) because the agreement purported to resolve
complainant's claim of age discrimination. The Commission noted
that the agreement did not specifically refer to a waiver of
complainant's rights, that it was unclear whether complainant had
been afforded a reasonable period of time in which to consider the
agreement, and unclear whether he was advised in writing to consult
with an attorney prior to executing the agreement. The agency was
ordered to address, on remand, whether complainant's waiver of his
ADEA claim met the standards of the OWBPA. If the agency found the
waiver was insufficient, then the agency had to reinstate the
complaint. Hannon v. Department of Defense (Defense Commissary
Agency), EEOC Appeal No. 01A00956 (July 5, 2001). This is a survey of selected recent discrimination findings made
by the EEOC. These selected decisions include findings of race,
age, sex, and disability discrimination, unlawful harassment, and
reprisal. Agencies are also put on particular notice that, under
the Commission's revised regulations set forth at 29 C.F.R. Part
1614 (November 9, 1999), EEOC will not overturn the factual
findings of its Administrative Judges where there is substantial
evidence in the record to support those findings. Complainant, a night shift Distribution Clerk with paranoid
schizophrenia, sought permanent reassignment to the day shift in
order to accommodate his disability. His request was based, in
part, on the significant side effects he was experiencing from the
medication he took daily to control his symptoms. The medication
was taken at night, and its sedating effects made it difficult for
complainant to function properly at work. In addition,
complainant's doctor noted that his condition made him very
vulnerable to stress and diagnosed anxieties and fears he was
experiencing by working at night. The physician concluded that the
day tour would enable complainant to regulate his sleep periods and
maintain a more stable emotional state. It was also noted that his
condition improved considerably during those periods when the
agency accommodated complainant by assigning him to the day shift
for several months at a time. The agency denied complainant's request, arguing that the
request was in effect a request for reassignment which had to
comply with the seniority provisions of the agency's collective
bargaining agreement (CBA). The agency argued that this constituted
an undue hardship. Complainant filed an EEO complaint and requested
a hearing before an EEOC Administrative Judge (AJ). The AJ
determined that the CBA provided options for medically necessary
permanent reassignments. The AJ found that complainant's request
was medically legitimate and that the agency had failed to
demonstrate undue hardship. On appeal, the Commission agreed with
the AJ and found that the agency had failed to reasonably
accommodate complainant. The agency was ordered to reassign
complainant to the day shift as recommended by his physicians, and
to restore any leave used or benefits lost due to the
discrimination. Woodley v. United States Postal Service,
EEOC Appeal No. 01972665 (July 13, 2000). An EEOC AJ found that the Social Security Administration had
discriminated against complainant on the basis of disability,
because its failure to laterally transfer her into the position of
Reader constituted failure to accommodate her disability. In
affirming the AJ, the Commission applied the substantial evidence
rule, which provides that all posthearing factual findings by an AJ
will be upheld on appeal if supported by substantial evidence in
the record, i.e., relevant evidence that reasonable minds
might accept as sufficient to support a conclusion. The Commission found that complainant was a qualified individual
with a disability, having made the best qualified selection list
(BQL) for the Reader position. With regard to her disability, the
Commission noted that complainant had been born with severe spina
bifida, a congenital birth defect which causes paraplegia and
sensation loss, among other things. She suffered from very poor
balance, pain and weakness in her back and legs, and limp feet. As
a result of spina bifida, complainant also developed a condition
which caused her to have difficulties with complex mathematical
calculations, and which contributed to the problems she had in
performing the duties of her position as a Clerk (Typing), duties
that involved maintaining time and attendance under an agency
system that was relatively complex. Complainant had a substantial
number of errors and, despite agency efforts to assist her, her
performance did not improve. The agency removed complainant in July
1993 due to her inability to perform the essential functions of her
position, i.e., the time and attendance duties. A few months before complainant was removed, the agency learned
that a blind Claims Representative would transfer to complainant's
facility and needed a Reader to assist her. Testimony at the
hearing showed that officials considered transferring complainant
into the Reader position. The agency decided to issue a vacancy
announcement for the position instead. It was issued shortly after
complainant's removal. Complainant applied but was not selected.
The Commission rejected the agency's argument that the Reader
position did not constitute a vacant position, to which complainant
could have been reassigned without posing an undue hardship on the
agency. The Commission also rejected the agency's assertion that
special needs positions, such as the Reader position in this case,
are not included in the class of positions available for
reassignment under the Rehabilitation Act. Accordingly, the
Commission found that the agency had purposefully decided not to
offer complainant the RA position but, instead, proceeded with her
removal. In addition, the Commission found that the agency had not
shown that it had made a good faith effort to reasonably
accommodate complainant. Thus, as part of the remedies it ordered,
the Commission directed the agency to consider complainant's
entitlement to an award of compensatory damages. Johnson v.
Social Security Administration, EEOC Appeal No. 01973945 (July
13, 2000). This case involved an appeal from an arbitrator's decision.
Complainant, a Claims Clerk and 17-year agency veteran, was deaf.
She communicated with others through American Sign Language (ASL).
The agency had hired an ASL interpreter in 1993, for the benefit of
complainant and two other deaf employees. In 1994, complainant
filed a grievance claiming retaliation and disability
discrimination regarding four recent disciplinary actions. She was
given written reprimands and suspensions for insubordination toward
her supervisor and for failing to complete a work assignment given
by her supervisor. She was also disciplined for her conduct in
situations in which she had disputes with the interpreter. In an
ensuing disciplinary discussion, the agency refused to provide
complainant with a different ASL interpreter as complainant had
requested and as provided by agency rules. Instead, the agency
required complainant to participate in the disciplinary discussion
using the interpreter who was a party to the argument. The Commission found that complainant had shown the agency's
actions were a pretext for disability discrimination. The
Commission noted that each incident depended on communication
between complainant and others, but that, in each case, management
proceeded either without first-hand knowledge of what had
transpired and/or in reliance on statements by the interpreter, who
was not a disinterested party. The Commission also found that
complainant's initial discipline tainted subsequent discipline.
Finally, the Commission found that the agency's actions in denying
complainant an outside interpreter were tantamount to a failure to
reasonably accommodate her disability. Under the circumstances, the
Commission stated, given the acrimonious relationship between
complainant and the interpreter, the interpreter's apparent lack of
ability, and the interpreter's personal involvement in most of the
events at issue, the accommodation could hardly be said to be
effective. The Commission noted that, although she was not entitled
to accommodation of her choice, complainant was entitled to
effective accommodation. The Commission found "incomprehensible"
the agency's thinking that it was reasonable accommodation to
compel complainant to use the interpreter's services or remain
silent, particularly in the face of the agency's threat to
terminate her if she did not use the interpreter's services during
the disciplinary discussion that followed the argument. The
Commission reversed the arbitrator and found both disability and
reprisal discrimination. Atkins v. Social Security
Administration, EEOC Appeal No. 02970004 (July 24, 2000).
Complainant, an Immigration Examiner, filed an EEO complaint on
the basis of physical disability (e.g., weakness in left thumb).
She claimed that she was discriminated against when she was denied
a waiver of the police training portion of the basic training for
her position. The police training included training in the use of
firearms, defensive techniques, and arrest techniques. She also
alleged that she resigned rather than yield to the agency's
requirement that she convert to an excepted service "Schedule A"
appointment as a condition to being exempted from the police
training. In its previous appellate decision, the Commission found that
the training at issue was not related to the essential functions of
complainant's position, and that the agency failed to show that
waiving the police training requirement would be an undue hardship.
The Commission ordered compensatory damages, and also ordered the
agency to promptly insure that the training policies at issue in
this case were in compliance with the Rehabilitation Act. However,
finding that complainant's resignation was voluntary, the
Commission did not order reinstatement and back pay for
complainant. Complainant filed this request to reconsider. The Commission
found that, had the agency not demanded that complainant accept
conversion to a Schedule A appointment or be terminated,
complainant would not have resigned her career position. Moreover,
even after the agency's Acting General Counsel advised the agency
that the course of action the agency proposed was unlawful, and
that the agency was obliged to accommodate complainant in her
career appointment, the agency still did not make any attempt to
reinstate complainant. The Commission stated that
this evidence, which showed "remarkable bad-faith dealing on the
part of the agency," established that the agency's discrimination
was a direct cause of complainant's unemployment. The Commission
modified the remedy in the previous decision by adding the order to
reinstate complainant to the Immigration Examiner position, with
back pay and benefits. Rosenthal v. Department of Justice,
EEOC Request No. 05981166 (July 14, 2000). Discrimination was found based on perceived disability (stutter)
and race (Black) against complainant, a temporary Electronics
Mechanic, from 1986 until his termination in 1993. He had not been
selected for supervisory and other positions. The Commission found
that complainant was subjected to a pattern and practice of the
agency's converting white, nondisabled employees to permanent
status over a seven-year period during which time complainant was
not afforded the same opportunity. The Commission further stated
that a discriminatory motive existed throughout complainant's chain
of command at the agency against complainant and other Black
employees. In addition, with regard to the agency's not selecting
complainant for a higher-graded position, the Commission found that
there was substantial evidence in the record to support the AJ's
finding that the agency regarded complainant as an individual with
communication difficulties that substantially limited him in the
major life activity of speaking. In this regard, the Commission
noted the comments of the selecting official that he was "bothered"
by complainant's speech impediment and that one of the reasons
complainant was not selected for the higher position was
communication. It was also this official who the Commission noted
had referred to Black employees as "boy." The Commission found that
this official did not unequivocally deny these as well as other
statements. The Commission awarded complainant monetary relief, including
$30,000 in nonpecuniary damages for emotional distress. In
supporting its award, the Commission declared "that the present
case does not solely deal with a nonselection for a position.
Indeed, the case involves a series of nonselections which
culminated in complainant's failure to convert to permanent status
and his ultimate termination from his seven-year temporary
employment with the agency." The Commission also provided other
relief including ordering retroactive placement in a permanent
Electronics Mechanic position. Flythe v. Department of the
Army,EEOC Appeal No. 01972258 (April 11, 2000). Complainant, a Procurement Analyst, alleged disability
discrimination (narcolepsy with cataplexy and vision loss) when he
was denied a flextime schedule with late arrival, and was denied
clerical assistance as a reasonable accommodation. Due to his
condition, complainant could not meet an early arrival time.
Complainant requested a later schedule, while maintaining his
alternate work schedule. However, his supervisor refused and
advised complainant he could have a later starting time or an
alternate work schedule but not both. Complainant also complained
that the agency required him to provide medical documentation
whenever he used sick leave despite the agency's awareness that he
had a chronic condition. Absent that documentation, complainant was
required to take annual leave. With regard to the issue of clerical assistance, complainant
claimed that he had not been provided with clerical assistance to
accommodate his vision problems of congenital estropia (muscle
loss) in the left eye with significantly reduced vision caused by
narcolepsy. This condition inhibited complainant's ability to see
the handwritten changes his supervisors made to his documents.
Complainant's supervisor agreed to have his own clerical assistant
type and incorporate the changes of his supervisors. Complainant
alleged, however, that the clerk refused to read or type for him
and that his supervisor failed to intervene. Finally, complainant
alleged that he was subjected to harassment when his supervisors
and co-workers repeatedly made derogatory remarks about his
condition. Complainant was granted disability retirement after he
filed his EEO complaint. The Commission found that the agency was not required to provide
complainant with both a late arrival time and a flexitime schedule,
declaring that complainant was entitled to "effective" reasonable
accommodation and not necessarily one of his own choosing. In this
regard, the Commission cited the EEOC Enforcement Guidance on
Reasonable Accommodation and Undue Hardship Under the Americans
with Disabilities Act No. 915.002 (March 1, 1999
at p. 17). The Commission found, however, that the agency had
failed to provide complainant with an effective accommodation for
his reduced vision caused by his narcolepsy. Specifically, the
Commission found that "the agency's provision of an oversized
monitor was not enough of an accommodation, by itself, because it
did not assist the complainant in reading the handwritten comments
of his supervisors." The Commission noted "that the clerk charged
with helping the complainant admitted she did not type for the
complainant, except for envelopes." The Commission also found for complainant on the medical
documentation issue. Complainant had averred that, under the
collective bargaining agreement, he was not required to provide
medical documentation on a continuing basis when it was known that
he suffered from a chronic condition. The Commission held that
complainant should have been granted accrued leave as a reasonable
accommodation. Finally, the Commission found for the agency in
rejecting complainant's claim that derogatory statements pertaining
to his disability rose to the level of a hostile work environment.
While finding the statements to be inappropriate, the Commission
found they were not sufficiently severe or pervasive and
unreasonable interfered with his work performance. Irvin v.
Department of Energy, EEOC Appeal No. 01991867 (September 8,
2000). Complainant, a direct patient care nurse at a VA medical
facility since 1982, challenged the agency's removal of her in
early 1995. Among the bases of alleged discrimination was physical
disability (hearing loss, obesity, and hypertension). At the time
of her hiring, complainant weighed 291 pounds and had dual hearing
loss. Her hypertension was (purportedly) controlled through
medication. The agency rated complainant at least "Satisfactory"
throughout her tenure, which included a 1994 performance appraisal.
Complainant wore hearing aids and requested that co-workers look at
her when they speak, as a means of accommodation. Phones at her
work station contained hearing amplified ear pieces. In August 1994, complainant's supervisor informed the Associate
Chief of the Nursing Service (RO-2) of the following concerns: (1)
whether complainant was able to perform cardiopulmonary
resuscitation (CPR); (2) staff members' fear that she could not
respond to an emergency; and (3) her hearing impairment which, on
occasion, led to misinterpretation resulting in the need for
immediate conflict resolution. Complainant underwent a fitness for
duty examination (FFDE) to evaluate her physical competency. The findings of the FFDE led to the convening of a Physical
Standards Board (PSB), comprising three physicians, to determine
complainant's future in her position. The PSB concluded that
complainant could remain in her position if she did the following:
(1) displayed a willingness to reduce her weight to 291 pounds
within six months to one year; (2) became certified in CPR within
six months; and (3) saw the FFDE physician every three months. The
Chief of Nursing Service objected to the PSB's recommendation,
asserting that it did not address "the actual clinical concerns" of
complainant's ability to function professionally as a nurse. The
Chief raised safety concerns pertaining to complainant's ability to
walk and hear, to respond quickly, and to her lack of CPR training.
Consequently, the PSB reconvened and concluded that complainant was
"physically incapable of performing the duties of her position
without hazard to herself and/or others." The PSB head, a
physician, expressed his belief that the Chief's memorandum was
designed to pressure the PSB into reversing itself. The agency issued a FAD finding no discrimination, which the
Commission reversed on appeal. The Commission found that
complainant was substantially limited in her ability to hear, even
with the help of mitigating measures (hearing aids). The Commission
also found that the agency regarded complainant as being
substantially limited as to walking as a result of hypertension and
obesity. The Commission found that complainant was able to perform
the essential functions of her position when she was removed,
noting her 1994 "Satisfactory" performance appraisal and her
previous successful ratings for 12 years. The Commission rejected
the agency's position that complainant was not qualified for her
position because her disabilities caused her to be a safety risk.
The Commission declared that "to exclude an individual on the basis
of a possible future injury, the agency must show more than that an
individual with a disability poses a slightly increased risk of
harm." In finding that the agency had discriminated against complainant
based on disability, the Commission drew two main conclusions.
First, the Commission found that the impetus for the FFDE was
unsupported fears rather than actual facts. In this regard, the
Commission noted that agency officials could not "identify a single
instance when [complainant] did not respond appropriately in an
emergency situation and/or placed a patient at risk." Second, and
more troubling to the Commission, were the actions of the agency
after the FFDE. The Commission noted, for example, the PSB head's
testimony that he felt pressured to change his previous
recommendation, as well as his additional statement that the PSB
never discussed whether complainant's continued tenure constituted
a risk. Therefore, the Commission concluded that complainant had
met her burden of showing that she was a qualified person with a
disability who was removed from her position because of her
disability. Accordingly, the Commission ordered the agency to offer
complainant reinstatement plus back pay with interest and
outstanding benefits. With regard to the question of CPR training,
the Commission directed the agency to afford complainant the same
treatment as other nurses had been afforded who had not been
certified, yet who were permitted to remain in their positions
until they did obtain certification without being perceived as
direct threats. Evey v. Department of Veterans Affairs,
EEOC Appeal No. 01970918 (September 15, 2000). "The dispositive issue in this case," the Commission declared,
"is whether the agency met its responsibility to provide
complainant with reasonable accommodations to his disability in
response to complainant's requests for permanent light duty." The
AJ found, and the Commission agreed, that complainant's repeated
requests for permanent light duty assignment were essentially
ignored. The Postal Service instead placed complainant in an unpaid
off-duty status. The Commission stated that the agency has the
responsibility to provide absolute and continuing accommodation to
complainant, until and unless doing so becomes an undue hardship.
The Commission noted that the agency may have conducted the
required individualized assessment of complainant's abilities and
limitations when complainant was first placed in a temporary light
duty position. However, it appears that the agency later ignored
complainant's request for a permanent light duty assignment and the
decision was made to send him home on an indefinite basis. The
Commission also found no evidence to suggest that placing
complainant on permanent light duty would have caused an undue
hardship on the agency. In its decision, the Commission pointed out that a factor in the
AJ's determination was credible testimony that the agency official
who handled complainant's light duty request made statements
evidencing a discriminatory animus toward employees with
disabilities during a light duty committee meeting. Testimony
indicated that these statements included a comment that individuals
with disabilities should be 'weeded out' prior to completing
probation because after that they were 'hard to get rid of.' As
part of the relief ordered, the Commission directed the agency to
reinstate complainant, with back pay, to his former position, with
reasonable accommodation. Williams v. United States Postal
Service, EEOC Appeal No. 01973755 (September 11, 2000). Complainant asserted that she had been subjected to sexual
and/or disability-based (cerebral palsy) harassment by her
first-level supervisor. In finding that complainant had been
discriminated against based on sex and disability, the AJ found her
testimony to be credible while finding the supervisor's testimony
lacking in credibility. The AJ further concluded that the agency
had failed to take immediate and appropriate action upon receiving
complainant's sexual harassment complaint. The agency's final
decision rejected the AJ's discrimination findings. In reversing the agency's finding of no discrimination, the
Commission decided that there was no significant evidence to
contradict the AJ's credibility findings. "These credibility
findings are particularly significant because the Commission
recognizes that sexual harassment may be private and
unacknowledged, with no eyewitnesses," stated the Commission. Finally, the Commission also noted that an agency should take
all steps necessary to prevent sexual harassment from occurring.
The Commission stated that it was disturbed by the fact that the
agency officials involved in this matter failed to take those
steps. The Commission found that the investigation into
complainant's allegations was wholly inadequate and far from
unbiased, and as a result, the agency took none of the critical
early steps which might have mitigated the harm to complainant.
Accordingly, the Commission found appropriate the consideration of
compensatory damages. The Commission also ordered the agency to
provide training with regard to sexual harassment to all the
managerial officials responsible for agency actions in this case.
Bynum v. Department of Veterans Affairs, EEOC Appeal No.
01974628 (June 1, 2000). In this case, the Commission set forth the elements necessary
for a complainant to prevail in a claim of sexual harassment by a
supervisor, and for an agency to successfully avoid liability.
According to complainant, on her first day on the job, her
supervisor "'eyed her up and down' and told her she was cute." Over
the course of the next several months, complainant said, the
supervisor made a number of sexually-oriented comments to her which
she found offensive. She testified at hearing that the supervisor
also made comments to her of an implicitly sexual nature. She
testified, for example, that, when she was retrieving change from a
front pants pocket, the supervisor approached her and offered to
help her remove the change. The supervisor denied complainant's
claims. However, several of her co-workers testified that the
supervisor regularly made comments concerning his sex life. One
witness testified that the supervisor, when he distributed
schedules to female clerks, would put the schedules in the pockets
of their shirts and remark "that it was the best 'feel' he had all
day." Complainant stated that she did not complain about the
supervisor's behavior because the supervisor "was the boss . . . it
is his word against yours . . . You don't want to make waves."
Complainant said she discontinued wearing makeup and fixed her hair
so he would leave her alone. However, complainant said an incident
occurred while she was in the ladies' restroom that "pushed her
over the edge," causing her to take action. The supervisor entered
the restroom in search of the custodian. The co-worker yelled at
the supervisor, asking what he was doing. The supervisor replied:
"Oh cool! I always wondered what it was like in here." The
supervisor subsequently was suspended for one week and was
transferred. Complainant testified that, as a result of this
incident, she could not work for several months and was diagnosed
with Post Traumatic Stress Disorder. On appeal, the Commission found overwhelming evidence in the
record that the supervisor routinely made offensive,
sexually-oriented comments in the workplace, and stated that "not
only were a number of these comments directed at complainant, but
it is clear that the comments were unwelcome to her." With regard
to the restroom incident, the Commission stated that although it
was not explicitly sexual in nature, when considered in the context
of the supervisor's other actions, it was illustrative of his lack
of respect for his female subordinates. With regard to
complainant's statement that she did not consider filing a
complaint prior to the restroom incident, the Commission did not
construe this as an admission that she was not affected by the
supervisor's prior behavior. The Commission found that her
testimony supported a finding that it was a combination of the
prior behavior and the restroom incident that, as complainant put
it, "pushed her over the edge." The Commission stated that an employer is vicariously liable for
sexual harassment by an employee's immediate supervisor or by
others who have authority over that employee. However, the
Commission also noted that where the harassment does not result in
a tangible employment action being taken against the employee, the
employer may raise an affirmative defense to liability. The
Commission stated that the agency can meet this defense, which is
subject to proof by a preponderance of the evidence, by
demonstrating: (a) that it exercised reasonable care to prevent and
correct promptly any sexually harassing behavior; and (b) the
complainant unreasonably failed to take advantage of any preventive
or corrective opportunities provided by the agency or to avoid harm
otherwise. The Commission also pointed out that this defense is not
available when the harassment results in a tangible employment
action (e.g., discharge, demotion, or undesirable reassignment)
being taken against the employee. The Commission cited its
Enforcement Guidance: Vicarious Liability for Unlawful Harassment
by Supervisors, EEOC Notice No. 915.002 (June 18, 1999), at p.
15. To satisfy the elements of its affirmative defense, the
Commission declared, an employer at a minimum must have an
anti-harassment policy and complaint procedure that contains the
following elements: (1) a clear explanation of what constitutes
prohibited conduct; (2) assurances that employees who bring
complaints of harassment or provide information related to such
complaints will be protected against retaliation; (3) a clearly
described complaint process that provides possible avenues of
complaint; (4) assurance that the employer will protect the
confidentiality of harassment complaints to the extent possible;
(5) a complaint process that provides a prompt, thorough, and
impartial investigation; and (6) assurance that the employer will
take immediate and appropriate corrective action when it determines
that harassment has occurred. In the present case, the Commission found that the agency's
affirmative defense failed. The Commission found it not apparent
from the record that the agency had a policy in effect during the
period in question that satisfied the aforementioned elements. The
Commission noted, for example, that the supervisor had not provided
his employees with a statement that workplace harassment would not
be tolerated until after complainant's complaint had been filed in
this matter. Therefore, the Commission found that the agency had
failed to satisfy the elements of its affirmative defense and
therefore was liable for the supervisor's harassment. As part of
the relief ordered, the Commission directed the agency to determine
whether complainant was entitled to compensatory damages; ensure
that the supervisor does not work in the same unit as complainant;
and reinstate any leave complainant used as a result of the
harassment. The Commission also ordered the agency to take
appropriate preventive steps to ensure that no employee is
subjected to sexual harassment and to ensure that appropriate steps
are taken immediately after management is notified of any such
harassment. Viers v. United States Postal Service, EEOC
Appeal No. 01975665 (October 14, 1999), RTR denied, EEOC Request
No. 05A00193 (November 30, 2000). Complainant filed an EEO complaint claiming that the agency
discriminated against him on the bases of race (Black), religion
(Islam), and reprisal by allowing him to be subjected to harassment
by a subordinate. A hearing was held before an EEOC AJ who found in
favor of complainant and ordered certain relief. In its final
order, the agency agreed with the AJ's decision and agreed to
implement the relief ordered by the AJ, except for Element (2). It
was from the following order of the AJ that the agency appealed to
the Commission: A. Issue a letter of reprimand to [the subordinate] admonishing
him for engaging in unlawful racial and religious harassment
directed to complainant; and B. Require [the subordinate] to attend sensitivity training on
racial and religious diversity as a condition of his continued
employment. On appeal, the Commission affirmed the agency's final order, but
modified Element (2) so that the agency would be directed to
consider taking disciplinary action against the subordinate. EEOC
also ordered the agency to require the subordinate to attend
sensitivity training, but would not require that attendance at that
training be a condition of the subordinate's continued employment.
The Commission noted that to do otherwise would be contrary to
EEOC's own regulations set forth at 29 C.F.R. Section
1614.102(a)(6), which states that each agency shall take
appropriate disciplinary action against employees who engage in
discriminatory practices. The Commission further declared it well
settled in both Commission precedent, as well as the implementation
of the amendments to Part 1614 in 1999, that it could not
discipline or order the discipline of employees directly. Instead,
the Commission has the authority to order the agency to consider
taking disciplinary action under appropriate circumstances.
Accordingly, in the present case, EEOC ordered the agency,
inter alia, to consider taking disciplinary action against
the subordinate employee found to have discriminatorily harassed
the complainant. The Commission further ordered the agency to
report to EEOC what disciplinary action, if any, it took against
the employee; or to set forth the agency's reasons for not imposing
discipline. Mitchell v. Department of Veterans Affairs ,
EEOC Appeal No. 07A00016 (April 12, 2001). Complainant alleged reprisal and disability discrimination after
being issued a temporary transfer assignment. The transfer was
issued less than five months after complainant filed two EEO
complaints alleging harassment and reprisal. The Commission
sustained her reprisal claim, after finding the agency's
explanation to be "unworthy of belief." The agency's explanation
for the transfer was that it was done in an attempt to resolve
stress and a hostile work environment. But, observed the
Commission, the agency failed to address the fact that the transfer
was only temporary, and failed to show that it took affirmative
measures to eradicate any undue stress or harassment before her
return. Moreover, the transfer letter stated that complainant would
be returned to her current position when her medical restrictions
were lifted, rather than when any unfavorable conditions have been
eradicated. For these reasons, the Commission found that the
agency's explanation lacked credibility, and found that complainant
proved that the agency's articulated reason for the temporary
transfer was pretextual. Whitmire v. Department of the Air
Force, EEOC Appeal No. 01A00340 (September 25, 2000). Complainant appealed from the final decision of the agency
(FAD), which found she had not been discriminated against on the
bases of sex (female) and race (Black) when: (1) she was hired in
September 1996, at GS-11, Step 7, instead of at a higher step; and
(2) she was not selected for the GS-12 position of Pharmacist Team
Leader, Outpatient Pharmacy, on or about May 7, 1997.
At the time this matter arose, complainant was
employed by the agency (Department of Veterans Affairs, or "VA") at
its Biloxi, Mississippi, facility, as a GS-11, Step 7,
pharmacist. In reversing the FAD, the Commission noted initially that the
agency had neglected, without explanation, to address complainant's
claim that the agency had violated the Equal Pay Act of 1963 (EPA).
EEOC found that complainant received less pay than four White male
pharmacists within her department (Pharmacy Services) who performed
the same job as she (GS-11 Pharmacist) and that their job duties
were substantially equal.EEOC also noted that the pharmacists were
supervised by the same chain of supervisors and had the same job
description. Further, the agency did not dispute complainant's
assertions that she performed the same duties and had equal or
greater responsibilities, due to her work on the evening shift,
than the male pharmacists and had, in fact, trained some of them.
Accordingly, EEOC found complainant had established a prima
facie violation of the EPA. The Commission also found that the agency had failed to meet its
burden of proving that the difference in pay between complainant
and the male comparatives resulted from a factor or factors other
than sex. EEOC rejected the agency's explanation (although not
directly addressing complainant's EPA claim) that two male
pharmacists (Y) and (Z) had initially refused the
agency's job offer and had wanted more money, showing that they
either had been paid more in a current position or had a more
lucrative job offer. The agency averred that the Professional
Standards Board (PSB), which had determined complainant's salary,
was not aware complainant had been paid more at her prior agency
position in Michigan and that complainant had accepted the agency's
offer in Biloxi. The Commission found that the PSB had information,
when it decided her step, not only of complainant's previous grade
and step, but also her previous salary, which was $11,000 more than
the agency's offer.
The Commission noted that an EPA violation was also a violation
of Title VII of the Civil Rights Act of 1964. Additionally, EEOC
rendered an independent finding of intentional sex discrimination
under Title VII. Further, the Commission found that the agency had
discriminated against complainant on the basis of race under Title
VII, finding pretextual the agency's explanation for the difference
in salary offers. With regard to the issue of complainant's nonselection, the
Commission found that the Chief of Pharmacy (CP), and the Assistant
Chief of Pharmacy (ACP) who had chaired the PSB, averred that the
selectee (S1) had 27 years of experience to complainant's 10.
However, EEOC found that the FAD's conclusion, that S1 was hired
because he had more experience than complainant did not address the
question of their respective qualifications, thus hindering
complainant's ability to prove pretext. Nonetheless, the Commission
found intentional discrimination noting its prior determination
that the agency had permitted discriminatory animus to affect its
treatment of complainant when ACP determined complainant's salary
offer. In addition, EEOC found, from background evidence, that, in
October 1996, ACP had denied complainant a promotion in favor of a
White male (S2) "under suspicious circumstances," when ACP granted
S2 an extension of time in which to apply for the promotion
(Pharmacy ADP Coordinator). As part of the relief granted, the Commission ordered the agency
to offer complainant the position at issue or a substantially
similar position with back pay, as well as back pay regarding her
Title VII claims and an additional equal amount in liquidated
damages for her EPA claim. EEOC also ordered the agency to consider
complainant's claim for compensatory damages for her nonselection;
provide EEO law training to CP and ACP; and ensure that the PSB
conducts an equally thorough review of each applicant's information
with regard to salary offers. Jones v. Department of Veterans
Affairs, EEOC Appeal No. 01994717 (November 2, 2000), request
to reconsider denied, EEOC Request No. 05A10136 (April 16,
2001). In this case, complainant, a GS-7 Respiratory Therapist (RT),
asserted that the agency (the VA) discriminated against her on the
basis of race (African-American), when she was not permitted to
perform sleep studies, and was trained by a less qualified
therapist from 1994 to September 1995, at the agency's Decatur,
Georgia, facility. The gravamen of her complaint was that the Chief
Therapist favored the comparative, the only RT on the night shift
who was not African-American, by assigning only him sleep studies
and informing only him about a sleep study training session. The
Commission noted that at least five RTs had filed EEO complaints
against the Chief and cited a decision in which it found racial
discrimination when the agency denied that complainant the
opportunity to conduct sleep studies. In its FAD, in the instant case, the agency conceded that the
comparative did the majority of sleep studies, but that other RTs
also did sleep studies. The agency averred that, while the Chief
Therapist needed to improve her supervisory skills, race was not a
factor in the way she treated employees. On appeal, complainant
contended that she was not assigned as many sleep studies as was
the comparative who had less formal training than complainant. She
(complainant) also provided a performance appraisal wherein she was
rated "fully successful" in the area of oxygen delivery. The Commission reversed the FAD, finding the agency's reasoning
to be pretextual. EEOC found no evidence to support the agency's
position that complainant made mistakes while conducting sleep
studies. The Commission also found not credible the Chief
Therapist's assertion that the comparative was the only RT who
expressed an interest in performing sleep studies. EEOC rejected
the agency's determination that the absence of direct evidence of
discrimination supported a finding of no discrimination. The
Commission noted that, in Reeves v. Sanderson Plumbing
Products, Inc., the Supreme Court had found that evidence
sufficient to discredit an employer's proffered nondiscriminatory
reasons for its actions, combined with a complainant's prima
facie case, may be sufficient to support a finding of
discrimination. In this regard, the Commission further found that
the Chief Therapist had belittled African-American RTs in front of
other co-workers, and did not afford them the treatment she
afforded the comparative. As part of the remedies ordered, EEOC directed the agency to
provide EEO law training to the Chief Therapist; ensure complainant
had the opportunity to perform sleep studies; and immediately
provide agency employees with equal opportunity in the assignment
of duties, including sleep studies. Christian-Harper v.
Department of Veterans Affairs, EEOC Appeal No. 01972786
(April 20, 2001). At the time this matter arose, complainant was a Personnel
Assistant, GS-203-7, at the Hiawatha National Forest (HNF),
Michigan, facility of the agency (Department of Agriculture). She
filed an EEO complaint alleging discrimination on the bases of race
(White), under Title VII, and age, under the Age Discrimination in
Employment Act of 1967 (ADEA), in connection with five claims. The
FAD found no discrimination as to any of those claims, and the
Commission, on appeal, affirmed the FAD as to four of those claims.
However, EEOC reversed the FAD as to the remaining claim, finding
that the agency had discriminated against complainant on the bases
of race and age when it denied her request for a position upgrade
through a classification. The Commission rejected the agency's assertion that complainant
had failed to establish a prima facie case of
discrimination, based on age and/or race, because there were no
similarly-situated employees in the HNF facility who had their
positions evaluated. EEOC reminded the agency that lack of
similarly-situated employees does not preclude a complainant from
raising an inference of discrimination. The Commission found, in
the instant case, that a Position Classification Specialist (PCS),
after reviewing complainant's position, found that complainant's
position merited an increase to Grade 8. The PCS indicated that the
key issue was the level of supervisory control exerted over the
position because complainant seemed to be operating with a level of
supervision akin to a GS-8 position. When management officials did
not respond to PCS' requests for information, including the extent
of supervisory control over complainant's position, he used
available information to recommend that the position be classified
as GS-8. In addition, EEOC found that an inference of discrimination was
raised when, contrary to the agency's claim, a chart listing the
grade levels of GS-203 Personnel Assistants in the region; and a
February 10, 1997 letter by an unidentified agency official to
another regarding the agency's failure to cooperate with PCS
concerning the inadequacy of the investigation into complainant's
complaint; showed that there were at least two GS-203 Personnel
Assistant GS-8s and one GS-9 in the region. The agency official who
wrote the letter stated that the record lacked information
concerning the GS-8 and GS-9 Personnel Assistants. Accordingly the Commission drew an adverse inference against the
agency, finding that the agency did not produce information about
the GS-8 and GS-9 Personnel Assistants, despite being put on notice
by one of its own officials, because such information, if produced,
would have proven unfavorable to the agency, i.e., that
those individuals were significantly younger and were of a
different race than complainant's. EEOC rejected the agency's
argument that a Regional Classification Specialist, upon
re-examination of complainant's position, had found the position
was correctly graded as a GS-7. The Commission found that the
agency had offered neither analysis nor explanation for this
determination. Therefore, the Commission found
that the agency had discriminated against complainant based on race
and age and ordered the agency, inter alia, to upgrade her
position to the GS-8 level, retroactively. Makosky v.
Department of Agriculture, EEOC Appeal No. 01976056 (August
23, 2001).
In this case, complainant, a City Carrier at the agency's North
Las Vegas, Nevada, facility, asserted that the agency discriminated
against her on a number of bases under Title VII, including
reprisal, as well as age under the ADEA, in connection with 12
claims. Among the claims was the allegation that she was
over-scrutinized and supervised (claim (1)). Subsequent to an
investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). At the conclusion of the hearing, the AJ
issued a recommended decision of no discrimination, finding, in
pertinent part as to claim (1), that the District Manager of Sales
and Services for the North Las Vegas Post Office (DM) sent an
employee (S1, a supervisor) to the facility to monitor complainant
starting on September 13, 1994. DM was responding to managers'
reports that the poor performance of the facility was due, in part,
to complainant's constantly filing grievances, requests for
information, and EEO activity, which prevented them from focusing
on the agency's mission. To ensure complainant would perform like
any other carrier, DM sent someone to monitor and scrutinize
her. The AJ found that complainant's EEO activity was inextricably
intertwined with her grievance activity and various investigations
and, thus, it would be difficult to determine that her EEO activity
was not part of what motivated DM. The AJ concluded that DM was
motivated by retaliation, as well as the desire to encourage
complainant to complete her route in a timely manner and prevent
her from slowing down work at the station. Accordingly, the AJ
concluded that DM had a mixed motive for assigning an employee to
monitor complainant and that DM would have taken the same action in
the absence of complainant's EEO activity. The FAD adopted the AJ's
recommended decision and noted that the agency had met its burden
of establishing that it would have taken the same actions in the
absence of complainant's EEO activity. Complainant appealed from
the FAD. On appeal, the Commission affirmed the FAD, with the exception
of the FAD's determination regarding claim (1). In reversing that
portion of the FAD, EEOC cited past Commission guidance and
precedent and declared that, where there is a finding of
discriminatory motivation, further proof of a legitimate motive
does not disprove the discriminatory motive. The Commission
declared that the finding that DM was also motivated by
nondiscriminatory concerns would affect the relief complainant was
due, but did not lead to a finding of no discrimination. Therefore,
EEOC concluded that complainant had established that S1's
overscrutiny was partially motivated by discriminatory animus.
Accordingly, the Commission determined that complainant was not
entitled to personal relief, but might be entitled to declaratory
relief, injunctive relief, attorney's fees and costs. As part of
the relief ordered, EEOC directed the agency to conduct sensitivity
and EEO law training for DM and S1. Hironaka v. United States
Postal Service, EEOC Appeal No. 01976665 (March 27, 2001). This matter involved an agency (Department of the Treasury)
appeal from an EEOC AJ's finding that the agency's reasons for not
selecting complainant for the position of Process Manager,
GS-301-14 were a pretext for discrimination based on age and race
(Black). Complainant, an employee of the United
States Customs Service, Field Operations, Gulf Customs Management
Center (GCMC), New Orleans, Louisiana, was permanently assigned to
the position of Senior Process Specialist, GS-301-13. On January 3,
1997, her supervisor (B-1) was selected as New Orleans Port
Director, a GS-15 position. Complainant replaced B-1 when she was
detailed to his former position in an acting capacity (GS-301-14
Process Manager) from January 5, 1997, to May 11, 1997. On February
4, 1997, the agency issued a vacancy announcement and six
candidates, including complainant, were referred for competitive
selection. The other candidates, all of whom were White, ranged in
age from 37 to 49 (complainant was 48). The selecting official (A-2), who was White and 62, was Director
of the GCMC. A-2 interviewed the candidates and spoke with four
Port Directors, three of whom recommended complainant: B-1, B-2,
and B-4. B-3 said he could work with complainant or C-1 (White,
37). A week later, B-1 changed his mind and recommended C-1. On May
2, 1997, A-2 selected C-1. A-2 wrote that C-1 had worked for him
for years, would bring a fresh perspective to the position, and was
able to analyze difficult situations and make objective
recommendations. At the hearing, A-2 testified that his first
choice was C-2 (Hispanic, 43), but C-2 rejected the position
because the agency could not hire her husband. A-2 conceded that
complainant had done a good job, despite difficult assignments;
that her detail was "pretty heavy"; and that she had little time to
"self start" projects. B-1 testified that he had changed his mind
regarding his recommendation of complainant because, at a Port
Director's meeting, he raised issues concerning the performance
measures that the GCMC was required to develop. B-1 averred that
complainant seemed indifferent while C-1 impressed him when he met
with her because she took more initiative in managing her assigned
responsibilities. However, A-2 testified that no one in the country
knew much about performance measures at that time. The AJ determined, after observing the demeanor of A-2 and B-1
as they testified, that they were not persuasive. The AJ decided
that the reasons for selecting C-1 over complainant were "simply
not credible" and found that complainant "had worked in the area of
the vacancy, had acted informally in the position, and the agency
had detailed her to the position for several months after the
vacancy developed." On appeal, the Commission rejected the agency's argument that
complainant had failed to demonstrate that she was more clearly
qualified than the selectee. In reversing the FAD, EEOC noted that,
in a nonselection case, pretext could be shown in a number of ways
and not merely by establishing that complainant's qualifications
were observably superior to the selectee's. Citing the Supreme
Court's decision in St. Mary's Honor Society v. Hicks, the
Commission found no basis to set aside the AJ's decision, and
ordered the agency, inter alia, to retroactively promote
complainant. Shaw v. Department of the Treasury, EEOC
Appeal No. 07A00014 (April 3, 2001). This page was last modified on June 13, 2002.Retaliation
Settlement Agreements
Standards of Appellate Review
Summary Judgment
Timeliness
Waivers
A Survey of Recent Findings of Discrimination
CBA Does Not Preclude Finding of Disability
Discrimination
Commission Finds Agency Failed To Accommodate
Complainant's Disability When She Was Not Reassigned
Arbitrator's Decision Reversed: Agency Failed to
Accommodate Complainant's Disability
Disability Discrimination was a Direct Cause of
Complainant's Unemployment
Pattern of Discrimination Found in Agency's Personnel
Practices
Agency Failed to Provide Reasonable Accommodation and
Unreasonably Continued to Demand Medical Documentation for Known
Chronic Condition to Support Sick Leave
"Direct Threat" Disability Determination Requires
Individualized Risk Assessment
Agencies Have Continuing Obligation to Provide
Reasonable Accommodation Absent Undue Hardship
Credibility Factor Noted in Sexual Harassment Findings;
Agency Investigation Inadequate
Agency Fails to Sustain Affirmative Defense to Vicarious
Liability for Sexual Harassment
Discriminatory Harassment Found; AJ's Order Regarding
Discipline Modified
Agency Liable Where Transfer was
Based
on Retaliatory Motive
Equal Pay Act and Title VII Violations Found in Wage and
Nonselection Case
Racial Discrimination Found in Duty
Assignments
Adverse Inference Drawn in Finding Age and Racial
Discrimination in Failure to Upgrade
Mixed Motive Does Not Obviate Finding of Discrimination,
But Limits Remedies Available
Age and Racial Discrimination Found in Nonselection
Case