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The DIGEST Of Equal Employment Opportunity Law

Volume XXII, No. 1


Office of Federal Operations
Winter 2011
Inside
Selected EEOC Decisions on:
Agency Processing
Compensatory Damages
Compliance
Dismissals
Findings on the Merits
Under the Rehabilitation Act
Under Title VII
Under Multiple Bases
Retaliation
Remedies
Sanctions
Settlement Agreements
Stating a Claim
Summary Judgment
Timeliness
Article: A Disability Case Law Update
The Digest of EEO Law is a quarterly publication of EEOC's Office of Federal Ope
rations (OFO)
Carlton M. Hadden, Director, OFO
Douglas A. Gallegos, Acting Director, OFO's Special Services Staff
Digest Staff
Editor and Writer: Robyn Dupont
The Digest is now available online through EEOC's homepage at www.eeoc.gov.
SELECTED EEOC DECISIONS
Agency Processing
Attempt to Amend Complaint Improperly Dismissed. Complainant timely contacted an
EEO Counselor and filed a formal complaint of race discrimination alleging that
the Agency denied him access to overtime. Complainant subsequently sought to am
end his complaint to include issues concerning his working conditions, leave, a
letter of warning, additional overtime, and an assignment. The Agency dismissed
the amended issues, stating that while they were like or related to the original
issue, Complainant failed to timely raise them with an EEO Counselor. On appeal
, the Commission found that the Agency erred when it dismissed the additional cl
aims. The Commission noted that the 45 day time limit applies only to Counselor
contact and not to subsequent attempts to amend a complaint. EEOC Regulation 29
C.F.R. § 1614.106(d) provides that a complainant may seek to amend a complaint at
any time prior to the conclusion of the investigation, and the section makes no
mention of a time limit. Further, the Agency acknowledged that there was no requ
irement that Complainant seek or receive counseling on the new claims. Thus, the
Commission remanded the additional claims to the Agency for further processing.
Braxton v. U.S. Postal Serv., EEOC Appeal No. 0120102410 (October 29, 2010).
Compensatory Damages
(The decisions below are a selected sampling of recent awards of compensatory da
mages. See, also, “Findings on the Merits,” this issue. – Ed.)
$165,000 Awarded for Discriminatory Hostile Work Environment. In a previous deci
sion on appeal, the Commission found that the Agency had subjected Complainant t
o a discriminatory hostile work environment, and that Complainant’s termination wa
s at least partially motivated by discriminatory animus. The Agency was instruct
ed to conduct a supplemental investigation with regard to Complainant’s claim for
compensatory damages, and the Agency ultimately issued a final decision awarding
Complainant $15,000 in non-pecuniary damages. On appeal, the Commission found t
hat the Agency’s award was inadequate. Complainant asserted that he experienced em
otional and physical suffering. He stated that he lost custody of his daughter b
ecause of testimony at the custody hearing by Agency officials regarding his ter
mination. Complainant also stated that he lost friendships, slept in his car, fr
equently did not have food, could not afford medical care, and did not have medi
cal insurance. Thus, the Commission concluded that Complainant was entitled to a
n award of $165,000 in compensatory damages in light of the emotional distress h
e suffered. Padilla v. U.S. Postal Serv., EEOC Appeal No. 0120090062 (September
21, 2010).
$150,000 Awarded for Sexual Harassment and Retaliation. Following a hearing, an
EEOC Administrative Judge (AJ) found that a co-worker subjected Complainant to s
exual harassment for more than seven years, and that the Agency retaliated again
st Complainant when it assigned her fewer overtime hours than male employees. Th
e AJ awarded Complainant $35,000 in compensatory damages, and Complainant filed
an appeal with the Commission challenging the adequacy of the award. On appeal,
the Commission found that the AJ’s award was inadequate. Complainant provided deta
iled testimony regarding the effects of the harassment, stating that she could n
ot concentrate, could not think, had difficulty sleeping, was depressed, and suf
fered nightmares. In addition, Complainant stated that she yelled at her childre
n, and the harassment affected her friendships and romantic relationships, makin
g her “want to be away from people.” Complainant stated that she experienced chest p
ains, sought counseling from a psychologist, and saw a physician, but was unable
to take medication for anxiety and depression because it made her ill. Two co-w
orkers confirmed that Complainant was scared of the harasser and distraught. The
Commission found the testimony compelling, showing that Complainant suffered ex
treme, prolonged emotional distress and harm because of the Agency’s seven-year fa
ilure to promptly and effectively address the harassment. Thus, the Commission c
oncluded that Complainant was entitled to an award of $150,000 in non-pecuniary
compensatory damages. Lopez-Rosende v. U.S. Postal Serv., EEOC Appeal No. 012010
2789 (November 30, 2010).
$150,000 Awarded for Sex, Race and Reprisal Discrimination. In a prior decision,
the Commission found that the Agency discriminated against Complainant on the b
ases of her sex, race, and prior EEO activity when it denied her request to atte
nd training and terminated her employment. The Commission ordered the Agency to
conduct a supplemental investigation with regard to Complainant’s claim for compen
satory damages, and the Agency awarded Complainant $40,000. On appeal, the Commi
ssion found that the evidence of record supported a higher award of $150,000. Sp
ecifically, the record showed that Complainant suffered from depression, anxiety
, stress, insomnia, difficulty concentrating, disassociation, crying spells, soc
ial isolation, damage to her professional reputation, withdrawal from relationsh
ips, and short-term memory loss. In addition, Complainant experienced nightmares
, panic, worsening abdominal pain, worsening hypertension, weight loss, and wors
ening psoriasis brought on by stress. The Commission stated that despite Complai
nant’s pre-existing conditions and additional stressors, the Agency’s discriminatory
termination was the proximate cause of her emotional and physical problems. The
Commission concluded that an award of $150,000 was clearly supported by the evi
dence, and based on the actual harm experienced as a result of the Agency’s action
s. The Commission also found that Complainant was entitled to payment of $39,121
.59 in pecuniary damages representing foregone interest and penalties incurred a
s a result of the withdrawal of funds from her Thrift Savings account. Brown-Fle
ming v. Dep’t of Justice, EEOC Appeal No. 0120082667 (October 28, 2010).
$115,000 Awarded for Reprisal. Following a hearing, an AJ found that Complainant
was subjected to unlawful reprisal when the Agency forced him to resign in lieu
of termination. As relief, the AJ awarded, among other things, $15,000 in non-p
ecuniary compensatory damages. Complainant filed an appeal with the Commission c
hallenging the award of damages. On appeal, the Commission found that the AJ’s awa
rd was inadequate. The record contained testimony from Complainant and his spous
e showing that he suffered significant weight gain, an inability to sleep, night
mares, aggravation of physical injuries, stomach distress, change in personality
, loss of enjoyment of life, withdrawal from family and friends, increased use o
f alcohol, lack of desire to socialize, isolation and bouts of anger. In additio
n, Complainant saw a therapist twice a week for depression until he could no lon
ger afford the treatment. Complainant’s psychologist testified that he diagnosed C
omplainant with major depression, and that without treatment, Complainant’s progno
sis was only fair. The record also showed that the discrimination resulted in a
deterioration of Complainant’s relationship with his wife and daughter, leading to
a separation and pending divorce. Thus, the Commission concluded that the recor
d supported an award of non-pecuniary compensatory damages in the amount of $115
,000. Chastain v. Dep’t of the Navy, EEOC Appeal No. 0120102409 (November 17, 2010
), request for reconsideration denied EEOC Request No. 0520110240 (March 31, 201
1).
$100,000 Awarded for Reprisal. In a previous decision on appeal, the Commission
found that Complainant was subjected to reprisal when the Agency replaced him as
a Supervising Attorney, and the Commission ordered the Agency, among other thin
gs, to conduct a supplemental investigation with regard to Complainant’s claim for
damages. The Agency ultimately awarded Complainant $40,000. On appeal, the Comm
ission determined that Complainant was entitled to $100,000 in non-pecuniary dam
ages. The supplemental investigation included substantial testimony from Complai
nant, family members, and medical providers as to the effects of the discriminat
ion. The evidence of record showed that Complainant suffered from major depressi
on, diminished enjoyment of life, withdrawal from family and friends, loss of co
ncentration, memory loss, and weight fluctuation. The Commission further noted t
hat Complainant was hospitalized as a result of the damages suffered from the di
scrimination. Conrad v. Dep’t of Justice, EEOC Appeal No. 0120090690 (April 9, 201
0), request for reconsideration denied EEOC Request No. 0520100327 (February 4,
2011).
$35,000 Awarded for National Origin Discrimination. Complainant filed a formal E
EO complaint alleging that the Agency discriminated against him on the basis of
his national origin when it assigned him to full time telephone duty, and an AJ
found that Complainant was discriminated against as alleged. The AJ, among other
things, awarded Complainant $35,000 in compensatory damages. After the Agency r
educed the award of damages, Complainant appealed the decision to the Commission
. On appeal, the Commission found that the AJ’s award of damages was supported by
substantial evidence and consistent with Commission precedent. Complainant suffe
red sleeplessness and daily humiliation for months. In addition, since only empl
oyees involved in illegal activities, those who had pending investigations, or t
hose who violated the code of ethics were assigned full time telephone duties, C
omplainant retired with the stigma of having done something wrong. Thus, the Com
mission affirmed the AJ’s award of $35,000 in compensatory damages. Rosa v. Dep’t of
Justice, EEOC Appeal No. 0720090035 (December 2, 2010).
$15,000 Awarded for Disability Discrimination. Following an investigation, the A
gency found that it had discriminated against Complainant and subjected her to h
arassment based on her disability. As relief, the Agency determined that Complai
nant was entitled to, among other things, an award of $6,000 in compensatory dam
ages. On appeal, the Commission found that the Agency’s award was inadequate. Comp
lainant stated that she felt she was “walking on egg shells at work” and the stress
of the discrimination was, at times, unbearable. She experienced anxiety, stress
, humiliation, loss of self esteem, and felt management was trying to get rid of
her. Complainant’s husband confirmed that the discrimination impacted Complainant’s
life and eroded her self esteem. Complainant’s therapist and neuropsychologist st
ated that the Agency’s actions caused problems with increased depression and low s
elf esteem. The Commission noted that the record showed that Complainant had med
ical conditions which pre-dated the discrimination or were aggravated by other f
actors. Nevertheless, the Commission found that Complainant endured severe stres
s for over three years, and the discrimination at work aggravated her emotional
problems. Thus, the Commission concluded that Complainant was entitled to an awa
rd of $15,000 in non-pecuniary compensatory damages. Warch v. Dep’t of the Navy, E
EOC Appeal No. 0120102421 (November 17, 2010), request for reconsideration denie
d EEOC Request No. 0520110205 (March 21, 2011).
$500 Awarded for Reprisal. In a prior decision, the Commission found that certai
n statements made by Complainant’s supervisor constituted a per se violation of Ti
tle VII, and that the Supervisor retaliated against Complainant when he failed t
o assist her in filling out a worker’s compensation form and instructed her to ref
rain from certain practices. The Commission ordered the Agency to conduct a supp
lemental investigation with regard to Complainant’s claim for damages, and the Age
ncy ultimately determined that Complainant was entitled to an award of $500. On
appeal, the Commission affirmed the Agency’s damage award. Complainant stated that
she had difficulty sleeping, felt sick to her stomach, and became anxious when
coming to work. She also alleged that her blood pressure became elevated, but ac
knowledged that it returned to normal once her Supervisor was relocated to anoth
er office. The Commission found that, based upon the evidence submitted by Compl
ainant, the Agency’s award was adequate. Vincent v. U.S. Postal Serv., EEOC Appeal
No. 0120101454 (December 16, 2010).
Compliance
Compliance with Final Agency Decision Addressed. Following a hearing, the AJ fou
nd that the Agency discriminated against Complainant on the bases of his age, se
x, and prior EEO activity when it failed to select him for a Supervisory Customs
Entry Officer position. The Agency implemented the AJ’s order which required the
Agency to, among other things, compensate Complainant for all additional pay and
benefits including Agency Thrift Savings Plan (TSP) contributions, pay interest
on lost back pay and benefits, and provide Complainant with a detailed statemen
t of its calculations regarding back pay and other benefits. According to the re
cord, Complainant and the Agency exchanged regular correspondence regarding impl
ementation of the order. Nevertheless, Complainant, believing the Agency had not
fully complied, filed an appeal with the Commission. On appeal, the Commission
initially determined that the Agency provided appropriate documentation showing
how it calculated back pay, and Complainant failed to show that the Agency’s back
pay calculations or the amount of money withheld was erroneous. The Commission,
however, found that it was unclear from the record how the Agency calculated the
interest on the back pay award. While the Agency claimed that the interest rate
fluctuated, it did not specify what interest rates it applied during the releva
nt periods. In addition, the spreadsheets provided by the Agency did not corresp
ond with the amount the Agency stated that it paid. With regard to the Agency’s TS
P contributions, the Commission found that it was unclear whether the Agency had
paid the earnings which Complainant’s account would have accrued but for the disc
riminatory non-selection. The Commission noted that, to the extent a complainant
would have received contributions to his retirement fund as a component of his
salary, he is entitled to have his retirement benefits adjusted as part of his b
ack pay award, including receiving earnings which the account would have accrued
during the relevant period. The Commission stated that the Agency must clearly
document its calculations for all TSP contributions, and provide evidence showin
g whether it had reimbursed the lost earnings to Complainant’s account, as well as
pay prejudgment interest on lost back pay and benefits, to the extent the Agenc
y had not yet done so, at the annual percentage rate or rates established by the
U.S. Secretary of the Treasury. Yovan v. Dep’t of Homeland Sec., EEOC Appeal No.
0120083601 (October 20, 2010).
Dismissals
(See also by category, this issue.—Ed.)
Complaint Improperly Dismissed as Stating the Same Claim Already Raised. Complai
nant filed a formal EEO complaint in 2008 raising various incidents of harassmen
t, including her reassignment. Complainant ultimately withdrew that complaint in
February 2010. On April 10, 2010, Complainant filed a second complaint alleging
that the Agency retaliated against her for engaging in prior protected activity
when it reassigned her to another unit in November 2009. The Agency dismissed t
hat complaint on the grounds that the matter had been raised in a prior complain
t. On appeal, the Commission found that, although the matter at issue in the Apr
il 2010 complaint was like or related to that which Complainant raised in the pr
ior complaint, it was a separate and distinct matter. Thus, the Agency improperl
y dismissed Complainant’s April 2010 complaint. Forkner v. U.S. Postal Serv., EEOC
Appeal No. 0120102712 (December 1, 2010).
Complainant Improperly Dismissed for Failure to Cooperate. Complainant filed a f
ormal EEO complaint alleging that the Agency discriminated against her when she
was told to have another employee make a pay adjustment, given a detail instead
of a transfer, the Acting Supervisor was told not to help her, she was accused o
f changing another employee’s time, and she was placed on a Performance Improvemen
t Plan. The Agency dismissed the complaint for failure to cooperate, stating tha
t Complainant failed to respond to an affidavit package asking her to clarify ce
rtain matters. On appeal, the Commission found insufficient evidence to support
a finding that Complainant engaged in delay or contumacious conduct that would w
arrant the dismissal of her complaint. In addition, the Agency failed to show th
at the complaint could not be adjudicated without the affidavit. The Commission
noted that Complainant identified the bases on which she alleged discrimination,
the specific actions she believed to be discriminatory, and the management offi
cials who took those actions. The record also contained the statements of the ma
nagement officials, and various documents related to Complainant’s alleged infract
ions. Thus, the matter was remanded to the Agency for further processing. Blair
v. U.S. Postal Serv., EEOC Appeal No. 0120103268 (November 19, 2010).
Complaint Improperly Dismissed. Complainant filed a formal EEO complaint allegin
g that the Agency denied her request for reasonable accommodation. The Agency di
smissed the matter as alleging dissatisfaction with the processing of a previous
ly filed complaint. The Agency asserted that the matter had been settled. On app
eal, the Commission initially noted that the language of the settlement agreemen
t stated that the Agency would continue to assign Complainant work pending her a
pplication to the District Reasonable Accommodation Committee. Subsequently, the
Committee denied Complainant’s request for reasonable accommodation, and suggeste
d that Complainant seek disability retirement. Complainant asserted that the Com
mittee failed to engage in the interactive process, and made assumptions about h
er ability to work. The Commission stated that it was clear from the record that
Complainant’s claim concerned the denial of reasonable accommodation, and that Co
mplainant did not know she would be denied accommodation at the time she signed
the agreement. The Commission stated that a complainant may validly waive only t
hose claims arising from discriminatory acts or practices which pre-date the exe
cution of the agreement, and a release or agreement that waives prospective righ
ts is invalid. In this case, while the agreement did not include language barrin
g Complainant from filing complaints regarding her request for accommodation, th
e Agency improperly treated it as such. Thus, the matter concerning Complainant’s
claim that she was denied reasonable accommodation was remanded to the Agency fo
r further processing. Wheeler v. U.S. Postal Serv., EEOC Appeal No. 0120102837 (
October 7, 2010).
Complaint Properly Dismissed: Complainant Elected to File with MSPB. Complainant
filed a formal EEO complaint alleging that the Agency discriminated against him
when it removed him from employment. The Agency notified Complainant that it ac
cepted his “mixed case” complaint and that he would ultimately have the right to app
eal the matter to the Merit Systems Protection Board (MSPB). The Agency later is
sued a final decision in the matter finding no discrimination, and notified Comp
lainant of his right to file an appeal with the MSPB. Complainant subsequently f
iled an appeal with the MSPB, but later withdrew the appeal in an attempt to hav
e the case returned to the Commission for an administrative hearing. An EEOC AJ
dismissed Complainant’s request for a hearing, stating that Complainant had the ri
ght to appeal the matter to the MSPB, and the Agency implemented the AJ’s decision
. On appeal, the Commission affirmed the dismissal of Complainant’s complaint. The
Commission noted that, once a complainant elects to proceed in the MSPB forum,
a later withdrawal of the MSPB appeal does not negate the prior election. Althou
gh Complainant asserted that he wanted to pursue the EEO process, the record sho
wed that Complainant made his election when he filed with the MSPB, and the with
drawal of that appeal did not give him the right to switch to the EEO process. R
odewald v. U.S. Postal Serv., EEOC Appeal No. 0120102522 (November 12, 2010).
Findings on the Merits and Related Decisions
(See by statute, as well as multiple bases, this issue. –Ed.)
Under the Rehabilitation Act
(See article below which includes recent decisions finding discrimination under
the Rehabilitation Act. –Ed.)
Under Title VII
Race Discrimination Found. Complainant was a permanent light duty employee at th
e Agency, with restrictions that included limited lifting, pulling, pushing, wal
king, standing, and kneeling. On two occasions in 2009, she requested to change
one of her days off from Monday to Thursday during one week in June. Her Supervi
sors denied the request. Complainant then requested to use annual leave on the d
ate in question, but this request was also denied with a notation “Quota full, res
ubmit at a later date.” Complainant subsequently filed a formal EEO complaint with
regard to these actions alleging, among other things, that the Agency discrimin
ated against her on the basis of her race. On appeal, the Commission found that
the Agency discriminated against Complainant when it denied her requests for a c
hange of schedule and annual leave. The Commission initially noted that Complain
ant established a prima facie case of race discrimination, in that she was a mem
ber of a protected group and was treated less favorably than other similarly sit
uated employees. In addition, the Commission found that the Agency failed to car
ry its burden to articulate a legitimate, non-discriminatory reason for its acti
ons. The Commission found the Agency’s assertions that Complainant could not take
the day off because the quota was full and because of holiday staffing were too
vague and ambiguous, and were not sufficient to rebut Complainant’s prima facie ca
se. Thus, because the Agency failed to set forth its reason for denying Complain
ant’s requests with sufficient clarity, Complainant was not given a full and fair
opportunity to demonstrate pretext. The Agency was ordered, among other things,
to investigate Complainant’s claim for compensatory damages, and provide training
for the responsible management officials. Padilla v. U.S. Postal Serv., EEOC App
eal No. 0120102224 (September 23, 2010).
Religious Discrimination Found. Complainant, a Civil Aviation Security Specialis
t, asked his Supervisor for leave to take part in his nephew’s confirmation. The S
upervisor asked if it was possible to change the date of the confirmation, and,
after making an inquiry, Complainant informed the Supervisor that the date could
not be changed. Complainant’s request was forwarded to the second-line Supervisor
, who denied the request citing his disbelief that Complainant needed to attend.
Complainant subsequently filed a formal EEO complaint alleging, among other thi
ngs, that the Agency denied his request for leave to perform the religious rites
for his nephew’s confirmation. On appeal, the Commission initially found that Com
plainant established a prima facie case of religious discrimination. Complainant
was an active member in his church, and his beliefs were genuine. In addition,
he asked his Supervisor for leave to participate in a religious ceremony. The Co
mmission further found that the Agency failed to show that accommodating Complai
nant’s request would have caused an undue burden. In this case, the second-level S
upervisor decided on his own initiative that Complainant’s beliefs were not genuin
e and therefore did not require consideration. Citing Questions and Answers: Rel
igious Discrimination in the Workplace, Q. 8 (July 22, 2008), the Commission not
ed that the issue of whether an employee’s beliefs are sincerely held is ordinaril
y not in question, but if so, the employer may make a limited inquiry into the f
acts and circumstances of the employee’s claim that the belief or practice at issu
e is religious and sincerely held, and gives rise to the need for accommodation.
In this case, despite Complainant having provided such information to the Agenc
y, the second-level Supervisor merely asserted his own opinion that Complainant
did not need to attend his nephew’s confirmation. The Commission stated that, in d
oing so, the Agency failed to provide Complainant with reasonable accommodation
of his religious beliefs, without the requisite showing of undue hardship. Thus,
Complainant established his claim of religious discrimination. The Agency was o
rdered, among other things, to investigate Complainant’s claim for compensatory da
mages, and provide training to the Supervisors involved in the discrimination. R
obledo v. Dep’t of Homeland Sec., EEOC Appeal No. 0120073884 (November 18, 2010).
Under Multiple Bases
Race, Color and Age Discrimination Found. Complainant filed a formal EEO complai
nt alleging that, among other things, the Agency discriminated against him on th
e bases of his race, color and age when it did not select him for a Supervisory
Grants Management Specialist position. On appeal, the Commission found that Comp
lainant was discriminated against with regard to his non-selection. The Commissi
on initially found that Complainant established a prima facie case of race, colo
r and age discrimination because the individual selected for the position was yo
unger than Complainant and outside of his protected groups. The Commission then
stated that the Selecting Official did not provide a sworn affidavit in the matt
er. The Commission noted that the Selecting Official had retired from the Agency
, but stated that the Investigator waited approximately five months after Compla
inant filed his formal complaint before contacting the Official, and thus, faile
d to act expeditiously. The Commission stated that it would not consider the Sel
ecting Official’s unsworn statements to the EEO Counselor as evidence in the case.
The Commission went on to conclude that the Agency failed to meet its burden of
articulating a legitimate, non-discriminatory reason for not selecting Complain
ant for the position. One Agency Official stated that the Selecting Official tol
d her that the Selectee was the best candidate based upon the Selectee’s experienc
e. In addition, another Official stated that he did not question the selection b
ased upon his experience supervising the Selectee. Nevertheless, the Commission
determined that the Agency offered very little to specifically explain why Compl
ainant was not selected. Both of the Officials who provided statements during th
e investigation specifically stated that they were not involved in the selection
decision, and offered no documentation to support their opinions. Thus, the Com
mission concluded that the Agency discriminated against Complainant when it did
not select him for the position in question. The Agency was ordered, among other
things, to place Complainant into the position with back pay and appropriate be
nefits, and investigate Complainant’s claim for compensatory damages. Harris v. De
p’t of Labor, EEOC Appeal No. 0120102099 (September 21, 2010), request for reconsi
deration denied EEOC Request No. 0520110064 (December 20, 2010).
Race and Age Discrimination Found. Complainant filed a formal EEO complaint alle
ging that the Agency discriminated against her on the bases of her race and age
when it did not select her for a Program Support Clerk position. Following a hea
ring, an AJ found that Complainant was discriminated against as alleged. On appe
al, the Commission concurred with the AJ’s findings. According to the record, 20 c
andidates were found to be qualified for the position and referred for considera
tion. The Agency selected eight candidates for the position, six of whom ultimat
ely accepted the Agency’s offer. The Commission noted that all of the Selectees we
re younger than Complainant, and four were of a different race than Complainant.
The Commission found that while the Agency articulated a legitimate, non-discri
minatory reason for its action, that is Complainant was not among the highest sc
oring candidates, Complainant proved, by a preponderance of the evidence, that t
he Agency’s stated reason was pretextual. The record showed that the candidates we
re interviewed by two Recommending Officials. The AJ noted that Complainant was
the only applicant for whom the Recommending Officials differed greatly in the s
cores they awarded. Specifically, one Recommending Official awarded Complainant
the lowest score of all applicants, while the other Recommending Official awarde
d Complainant the highest score. Further, the first Recommending Official could
not explain why he scored Complainant so poorly. The Agency was ordered, among o
ther things, to offer Complainant the position in question with appropriate back
pay and benefits, and pay her $3,000 in proven compensatory damages. Stuart v.
Dep’t of Veterans Affairs, EEOC Appeal No. 0720090038 (October 19, 2010), request
for reconsideration denied EEOC Request No. 0520110113 (December 2, 2010).
Retaliation
Retaliation Found. Complainant worked as a Supervisory Assistant to the Special
Agent in Charge. In November 2005, he provided an affidavit for a subordinate em
ployee’s EEO complaint. In addition, Complainant provided notes and affidavit stat
ements in support of a co-worker’s EEO complaint. Complainant subsequently filed a
formal EEO complaint himself alleging, among other things, that the Agency subj
ected him to retaliation. On appeal, the Commission noted that the record contai
ned an e-mail from an Assistant Special Agent in Charge stating that he was read
y to file a counter complaint against Complainant and asking two other officials
for documentation of comments allegedly made by Complainant. The e-mail contain
ed a forwarded e-mail from an EEO Counselor stating that Complainant had filed a
n informal EEO complaint. The Commission found that the Assistant Special Agent
in Charge improperly publicized Complainant’s EEO activity by forwarding the e-mai
l from the EEO Counselor to other management officials. Further, pairing that e-
mail with a solicitation of negative information to use against Complainant unde
rscored the retaliatory motive for sending the e-mail. The Commission also state
d that, by threatening to file a counter claim against Complainant, the Assistan
t Special Agent in Charge acknowledged that his e-mail was intended to challenge
Complainant’s EEO activity. In addition, the Assistant Special Agent in Charge ac
knowledged that he ordered Complainant to give him notes that he, Complainant, h
ad shared with an EEO Counselor regarding another official’s conduct on a selectio
n panel, and that the Assistant Special Agent in Charge then shared the contents
of the notes with that official. The Commission found that the Assistant Specia
l Agent in Charge’s actions were reasonably likely to deter employees from engagin
g in EEO activity and therefore constituted unlawful reprisal. The Agency was or
dered, among other things, to provide EEO training to all managers and superviso
rs at the facility where the discrimination occurred, and investigate Complainan
t’s claim for compensatory damages. Schofield v. Dep’t of Homeland Sec., EEOC Appeal
No. 0120082521 (November 2, 2010), request for reconsideration denied EEOC Requ
est No. 0520110173 (February 18, 2011).
Remedies
Front Pay Awarded. In a previous decision, the Commission found that the Agency
discriminated against Petitioner on the bases of her sex, race, and in reprisal
for prior EEO activity when it denied her request to attend a training conferenc
e, and terminated her employment. As relief, the Commission ordered the Agency t
o, among other things, offer to reinstate Petitioner to her former position, and
provide Petitioner with front pay in the event that she rejected the offer of r
einstatement. Petitioner subsequently filed a petition for enforcement with the
Commission, stating that the Agency failed to provide her with front pay. The Co
mmission initially rejected the Agency’s assertion that Petitioner was not entitle
d to front pay because she was medically unavailable for work, stating that a ps
ychiatric report provided by Petitioner stated that she was in fact able to retu
rn to work, although not at the same location where the discriminatory conduct o
ccurred. In addition, the Commission found that Petitioner was entitled to an aw
ard of front pay for a period of two years. While Petitioner requested front pay
until retirement, the Commission found that such an award would constitute a wi
ndfall. The record showed that Petitioner was medically available for work, and
an award of front pay until retirement would place Petitioner in a better positi
on than she would have enjoyed in the absence of the discrimination. Brown-Flemi
ng v. Dep’t of Justice, EEOC Petition No. 0420080016 (October 28, 2010).
Reinstatement to Temporary Position Proper. Complainant filed a formal EEO compl
aint alleging that the Agency discriminated against him when it did not select h
im for a temporary position. The term of the position was limited to one year an
d one day. Following a hearing, an AJ found that Complainant was discriminated a
gainst as alleged. As a remedy, the AJ ordered the Agency, among other things, t
o offer Complainant the position in question. Complainant ultimately appealed to
the Commission, stating that the Agency only offered him a temporary appointmen
t not to exceed one year and one day without the possibility of permanent appoin
tment. On appeal, the Commission concurred with the AJ. Specifically, the Commis
sion stated that retroactive reinstatement to a comparable position for the same
appointment length was the appropriate remedy in this case. Complainant acknowl
edged that the Agency offered him a position for one year and one day, which was
the length of time for the underlying appointment. While Complainant asserted t
hat most people who hold temporary positions at the facility have received perma
nent appointments, he failed to produce any evidence to support his contention.
Whitson v. Dep’t of the Army, EEOC Appeal No. 0120102567 (October 15, 2010).
Sanctions
AJ’s Dismissal of Hearing Request Was Proper. Complainant filed a formal EEO compl
aint alleging that the Agency subjected her to sexual harassment. Following the
investigation, Complainant requested an administrative hearing. The AJ ultimatel
y denied the hearing request on the grounds that Complainant failed to comply wi
th a Scheduling Order, and a subsequent Order extending the deadline for discove
ry completion by not providing any of the requested information. The Agency then
issued a final decision finding that Complainant had not been subjected to hara
ssment as alleged. On appeal, the Commission noted that the EEOC Regulations aff
ord broad authority to AJs for the conduct of hearings, including the authority
to sanction a party for failure, without good cause shown, to fully comply with
an order. In this case, the AJ informed Complainant that her failure to respond
to the second Order, in the absence of a timely request for an extension, would
be considered abandonment or a waiver of her request for a hearing. Complainant
failed to submit any of the information required by the AJ. Thus, the Commission
found that the imposition of a sanction was properly within the AJ’s discretion,
and the AJ properly remanded the case to the Agency for a decision on the record
. Murphy v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120091774 (October 15, 201
0), request for reconsideration denied EEOC Request No. 0520110144 (February 3,
2011).
Settlement Agreements
Settlement Agreement Void: No Meeting of the Minds. Complainant and the Agency e
ntered into a settlement agreement which provided, in pertinent part, that the A
gency would research the overtime schedule to determine whether Complainant was
passed over for such hours. If the Agency determined that Complainant was improp
erly passed over, “a makeup opportunity” would be afforded to her. Complainant alleg
ed that the Agency breached the agreement when it failed to provide her with mak
e-up overtime hours. On appeal, the Commission found that the terms of the agree
ment concerning overtime were too vague and general to have allowed for a meetin
g of the minds. The Agency conceded that a review of the overtime tracking sheet
showed that Complainant was by-passed for overtime for a total of 60 hours, but
stated that Complainant was given 60 hours of make-up overtime. Complainant, on
the other hand, asserted that the overtime offered her was not make-up overtime
because it was offered on days that she normally worked overtime, and on days w
hen all employees were required to work. Thus, the Commission concluded that the
re was no contemporaneous meeting of the minds between the parties concerning th
e make-up overtime, and the settlement agreement was void. Crutcher v. U.S. Post
al Serv., EEOC Appeal No. 0120102764 (December 10, 2010).
Breach of Settlement Found. Complainant and the Agency entered into a settlement
agreement which provided, in pertinent part, that the Agency would pay Complain
ant at the GS-7 level for a specified period of time, “without overtime and subjec
t to applicable holdings, offset by earnings and income exempt unemployment bene
fits…, but including interest and credit for purposes of seniority, leave, and ret
irement.” Complainant first alleged that the Agency breached the settlement agreem
ent in 2008 when it failed to pay her the money owed. In Lien v. Dep’t of Homeland
Sec., EEOC Appeal No. 0120084005 (January 30, 2009), the Commission found that
the Agency was making a good faith effort to comply based upon its assertions th
at it had made one payment to Complainant and was attempting to determine the re
maining amount. Complainant subsequently notified the Agency, in September 2009,
that it had still failed to pay her the money owed under the settlement agreeme
nt. This time on appeal, the Commission found that the Agency was in breach of t
he agreement. The Commission noted that it appeared that the Agency closed the f
ile in the matter once it received the Commission’s prior decision, which was not
the Commission’s intention. The Commission stated that the Agency was expected to
continue its efforts to pay Complainant the money owed. The Commission concluded
that, given that nearly two years had passed since the issuance of its initial
decision and the fact that the Agency had apparently not made any further effort
s to calculate the money owed Complainant, the Agency was now in breach of the a
greement. The Commission accepted Complainant’s calculations showing that she is e
ntitled to a specified sum in back pay. In addition, the Commission stated that
Complainant was entitled to any additional attorney’s fees incurred in seeking tha
t payment. Lien v. Dep’t of Homeland Sec., EEOC Appeal No. 0120101103 (November 4,
2010), request for reconsideration denied EEOC Request No. 0520110189 (February
18, 2011).
Breach of Settlement Found: Agency Acted in Bad Faith. Complainant and the Agenc
y entered into a settlement agreement which provided, in pertinent part, that th
e Agency would place Complainant into a specific Building Management Custodian p
osition and pay her back pay. Approximately six months later, Complainant notifi
ed the Agency that she believed the agreement had been breached. Specifically, C
omplainant asserted that the Agency knew that the building where the position wa
s located would be closing but failed to disclose the information to her before
she signed the agreement. On appeal, the Commission found that the Agency acted
in bad faith when, despite having knowledge of the pending closure of the buildi
ng where the position specified in the agreement was located, the Agency failed
to disclose the information to Complainant or her representative. Thus, the Comm
ission found that the Agency breached the agreement, and remanded the matter for
further processing. Suter v. U.S. Postal Serv., EEOC Appeal No. 0120093523 (Oct
ober 19, 2010).
Breach of Settlement Found. The parties entered into a settlement agreement whic
h provided, in pertinent part, that the Agency would “use the VRI system” when the P
ostmaster called all employees together on the floor for talks on three specifie
d dates. Complainant subsequently alleged that the Agency breached the agreement
when it did not use the VRI system on one of the dates listed in the agreement.
On appeal, the Commission found that the Agency breached the agreement. The Age
ncy asserted that it informed Complainant in writing of the issues that were dis
cussed because at the time of the talk, the VRI system was not operating. The Co
mmission found, however, that there were other days when the Agency gave talks w
here Complainant was present and VRI was not provided in breach of the agreement
. Soto v. U.S. Postal Serv., EEOC Appeal No. 0120102801 (October 12, 2010).
Stating a Claim
(In the following cases, the Commission found complainants’ claims to be cognizabl
e. –Ed.)
Castillo v. U.S. Postal Serv., EEOC Appeal No. 0120103353 (December 21, 2010) (t
he Complainant’s claims that the Agency discriminated against her when it did not
properly adjust her route, disciplined her for unauthorized overtime, and subjec
ted her to excess scrutiny, when considered collectively, stated a viable claim
of harassment).
Doster v. Dep’t of the Army, EEOC Appeal No. 0120103411 (December 14, 2010) (the C
omplainant, a former Agency employee, stated a viable claim of retaliation when
he alleged that the Agency requested that his current employer terminate him fro
m his position. The Commission noted that the action was akin to the Agency refu
sing to provide post-employment letters or offering negative references to prosp
ective employers).
Brown v. Dep’t of Def., EEOC Appeal No. 0120103139 (December 8, 2010) (the Complai
nant’s claim that the Agency discriminated against him when it placed him on a per
formance improvement plan stated a viable claim of retaliation. Although, in mos
t cases, a performance improvement plan does not constitute an adverse action su
fficient to render an employee aggrieved, the Commission has a policy of conside
ring reprisal claims with a broad view of coverage).
Whigman v. U.S. Postal Serv., EEOC Appeal No. 0120102778 (November 3, 2010) (the
Complainant stated a viable claim of retaliation when he alleged that his Super
visor gave him a letter threatening to sue Complainant and his attorney, and mai
l concerning his EEO complaint was returned to his representative, since such ac
tions can have a potentially chilling effect on the EEO process).
Miller v. U.S. Postal Serv., EEOC Appeal No. 0120093703 (October 21, 2010) (the
Complainant’s claim that the Agency denied her request to change her work location
and assigned work outside of her medical restrictions stated a valid claim of d
iscrimination. The Agency mischaracterized Complainant’s claim as merely alleging
the denial of a preferred assignment).
Clark v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120102177 (October 15, 2010)
(the Complainant stated a viable claim of harassment by the Agency’s Chief, Office
of Business Oversight. Complainant listed numerous incidents involving the Chie
f which occurred for over one year, and included comments such as “you think I got
it made as a White man,” and if anyone accused him of racism, he would “meet them i
n the alley” which the Commission found troubling).
Hansen-Schoolderman & Sanders v. Dep’t of the Army, EEOC Appeal Nos. 0120103075 &
0120103055 (October 12, 2010), request for reconsideration denied EEOC Request N
os. 0520110060 & 0520110063 (December 17, 2010) (the Agency improperly dismissed
Complainants’ claims of discrimination on the grounds that they were not Agency e
mployees. The evidence, including a statement in the Handbook outlining the rela
tionship between the Agency and the contractor which provided that Complainants
would “work within the same employer-employee relationship that exists for governm
ent employees,” was sufficient to show that Complainant’s should be treated as Agenc
y employees for purposes of filing an EEO complaint).
(In the following case, the Commission affirmed the Agency’s determination that th
e Complainant failed to state a claim. –Ed.)
Felt v. Nat’l Aeronautics & Space Admin., EEOC Appeal No. 0120103036 (November 29,
2010) (the Complainant’s allegation that the Agency discriminated against him wit
h regard to an unsolicited proposal he submitted failed to state a viable claim.
The Agency’s rejection of Complainant’s unsolicited proposal concerned his capacity
as a private individual and did not affect a term, condition or privilege of em
ployment).
Camp v. U.S. Postal Serv., EEOC Appeal No. 0120102965 (October 25, 2010) (the Co
mplainant’s allegation that management failed to post a job vacated by a retired e
mployee fails to state a viable claim. Complainant did not dispute that all empl
oyees, regardless of protected bases, were affected in the same way by the Agenc
y’s action).
Summary Judgment
AJ’s Decision on Summary Judgment Was Proper. Complainant, an Acting Supervisor, f
iled a formal EEO complaint alleging that she was subjected to harassment when a
n employee under her supervision approached her from behind and placed a noose a
round her neck. Complainant stated that she informed the Mailing Standards Speci
alist and Acting Plant Manager of the incident the following day, and told them
she wanted to talk to the employee before management took any action. Complainan
t talked with the employee, and, after returning to work following the weekend,
Complainant asked management to investigate the incident. Management began its i
nvestigation that same day, and also placed the employee in off duty status. The
employee did not return to work and was subsequently terminated. An AJ ultimate
ly issued a decision in the matter without a hearing, finding that, although the
incident in question constituted prohibited harassment, the Agency was not liab
le because it took prompt remedial action. On appeal, the Commission found that
the AJ’s grant of summary judgment was proper, because the investigative record wa
s adequately developed, there were no genuine issues of material fact, and there
were no findings of fact made by weighing conflicting evidence or assessing wit
ness credibility. The Commission noted that it was undisputed that the noose inc
ident occurred, and that the incident was severe enough to constitute harassment
. The Commission further agreed with the AJ that the Agency was not liable becau
se it took prompt and appropriate remedial action. The Commission noted that the
Agency did not become aware of the incident until the day after it occurred, at
which time Complainant requested to be allowed to first talk to the employee. T
he Agency then began its investigation on the day Complainant requested such act
ion, and removed the employee from the workplace. There was no evidence that any
discriminatory harassment continued in Complainant’s workplace. Douglass v. U.S.
Postal Serv., EEOC Appeal No. 0120091037 (October 26, 2010).
AJ’s Decision on Summary Judgment was Proper in Part. Complaint worked for the Age
ncy in a term position. He filed a formal EEO complaint alleging that the Agency
discriminated against him on the basis of his disability when he was declared i
neligible for a permanent position, and denied the use of voice recognition soft
ware as a reasonable accommodation. Following an investigation, Complainant requ
ested an administrative hearing. After Complainant failed to comply with an Orde
r to provide discovery responses, the AJ rendered summary judgment on the first
claim as a sanction. Further, the AJ found no discrimination with regard to the
second issue. On appeal, the Commission initially found, with regard to the clai
m of non-selection for a permanent position, that summary judgment was a disprop
ortionately harsh sanction for Complainant’s untimely discovery responses. While t
he Commission agreed that Complainant and his counsel delayed the discovery proc
ess, the Commission stated that the AJ acknowledged that much of the information
sought by the Agency was already contained in the record. Thus, the Agency was
not unduly prejudiced by the delay since it could refer to the investigative fil
e for the information. In addition, while Complainant’s attorney provided the disc
overy responses after the deadline set by the AJ, he did so well in advance of t
he hearing. Thus, the Commission determined that it was improper for the AJ to g
rant summary judgment to the Agency without notice to Complainant, without affor
ding Complainant an opportunity to respond, and without including a comprehensiv
e statement of undisputed facts. The Commission noted that there were genuine is
sues of material fact regarding the non-selection, including a dispute as to whe
ther Complainant was qualified for the position, such that a hearing was necessa
ry in the matter. With regard to the second claim, the Commission stated that th
e undisputed facts show that Complainant obstructed the interactive process by f
ailing to provide requested medical documentation explaining how the requested v
oice recognition software would restore him to a full-time schedule. While Compl
ainant stated that he provided a note from a doctor, the Commission found that t
he note did not in fact contain any reference to voice recognition software. In
addition, while Complainant included a one-page statement from the doctor with h
is brief opposing summary judgment, the Commission found that it was submitted m
ore than one year after Complainant filed his formal complaint. Thus, the Commis
sion stated that the Agency was not liable for failing to provide Complainant wi
th voice recognition software after he failed to produce requested medical infor
mation within a reasonable period of time. Laney v. Dep’t of Homeland Sec., EEOC A
ppeal No. 0120091518 (October 21, 2010).
Summary Judgment Improper. Complainant, a Toolmaker, filed a formal EEO complain
t alleging that the Agency discriminated against him on the bases of his race, s
ex, color, and in reprisal for prior EEO activity when he was not selected for a
detail to a supervisory position. Over Complainant’s objections, an AJ issued a d
ecision in the matter without a hearing finding that Complainant failed to prove
discrimination. On appeal, the Commission found that there were genuine issues
of fact such that a hearing in the matter was necessary. Specifically, the Commi
ssion stated that the record contained conflicting information regarding whether
Complainant was considered for the detail. The Selecting Official indicated tha
t there were two employees on the list of interested candidates he received, and
he chose the Selectee because the other employee had previously been awarded a
detail. The Plant Manager, however, stated that Complainant was also on the list
of interested candidates. Thus, the Commission found that, based upon the state
ments of the Selecting Official and the Plant Manager, it was unclear what the r
easons were for Complainant’s non-selection. The Commission stated that the basis
for the Selecting Official’s decision is a question of fact which is material to t
he disposition of the complaint. Thus, the matter was remanded for an administra
tive hearing. Stambaugh v. Dep’t of the Treasury, EEOC Appeal No. 0120092641 (Dece
mber 15, 2010).
Timeliness
Formal Complaint Deemed Timely. Complainant contacted an EEO Representative at t
he Agency alleging that the Agency subjected her to harassment of the bases of h
er race, disability, and prior EEO activity. Complainant’s attorney received a Not
ice of Right to File a formal complaint on February 20, 2008, and Complainant fi
led her formal complaint on April 21, 2008. The Agency accepted the complaint, a
nd, following the completion of its investigation, Complainant requested an admi
nistrative hearing. The AJ ultimately dismissed the complaint as untimely, and t
he Agency adopted the AJ’s dismissal. On appeal, the Commission found that the rec
ord contained adequate justification to warrant an extension of the time limit f
or filing a complaint. Complainant submitted an affidavit to the AJ in oppositio
n to the Agency’s motion to dismiss in which she averred that during the period wh
en her complaint was due she was unable to assist her attorney and did not have
the mental capacity to do anything related to her job. Complainant’s attorney stat
ed that she was “non-communicative and unresponsive.” Further, the record contained
a statement from Complainant’s treating psychologist completed during the period i
n question indicating that Complainant was diagnosed with a major depressive dis
order, severe, recurrent psychosis, and post traumatic stress. The psychologist
indicated that Complainant was unable to work due to her mental health condition
s. The Commission stated that even though there was some evidence of improvement
in Complainant’s condition by March 2008, Complainant produced sufficient evidenc
e of the limiting effects her mental illness had on her ability to timely file h
er complaint. White v. Dep’t of Health & Human Serv., EEOC Appeal No. 0120102784 (
November 29, 2010).
Formal Complaint Timely Filed. Complaint contacted an EEO Counselor alleging tha
t the Agency subjected him to discriminatory harassment. Complainant was issued
a Notice of Right to File a formal complaint on March 24, 2010. Complainant cont
acted the EEO Counselor in April, indicating that he did not believe he had an a
ctual final interview and that he did not believe that counseling had ceased. Th
e EEO Counselor told Complainant that she had completed counseling and stated th
at she would mail Complainant a second Notice of Right to File. Complainant rece
ived the second Notice on April 24, 2010, and filed his formal complaint on Apri
l 27, 2010. The Agency subsequently dismissed the complaint as untimely based up
on the date of the first Notice. On appeal, the Commission found that Complainan
t timely filed his formal complaint. The Commission noted that the EEO Counselor
volunteered to send Complainant a second Notice of Right to File, and, therefor
e, the second Notice superseded the first Notice for purposes of determining the
timeliness of the formal complaint. Middleton v. Dep’t of Veterans Affairs, EEOC
Appeal No. 0120103021 (November 12, 2010).
Claims Regarding Allegedly Discriminatory Pay and Pension Checks Were Not Timely
Raised with EEO Counselor. Complainant retired from the Agency in 1997. In May
2009, Complainant contacted an EEO Counselor, and subsequently filed a formal co
mplaint alleging that the Agency discriminated against her when it paid her less
than similarly situated male employees during the last three years of her emplo
yment. In addition, Complainant alleged that she has been receiving less in reti
rement pay than she is entitled to receive. The Agency dismissed the complaint f
or failure to timely contact an EEO Counselor. On appeal, the Commission initial
ly found that the Agency properly dismissed the allegation concerning the pay Co
mplainant received while she was employed. The Commission noted that Complainant
retired and received her last paycheck over 12 years prior to the time she cont
acted the Counselor. In addition, the Commission found that Complainant failed t
o timely raise the claim concerning her pension checks. In a matter of first imp
ression, the Commission stated that Section 2(4) of the Lilly Ledbetter Fair Pay
Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (January 29, 2009), provides that “[n
]othing in this Act is intended to change current law treatment of when pension
distributions are considered paid.” The Commission noted that the legislative hist
ory of this provision of the Act supports differentiating between wage-based cla
ims and claims based on pension payments. In addition, the Commission stated tha
t Complainant did not point to any convincing evidence that the reasoning applie
d to date, that is a series of payments of discriminatory wages may constitute a
continuing violation while a series of payments of discriminatory pension benef
its usually does not, should not apply in the instant case. Brakeall v. Envtl. P
rot. Agency, EEOC Appeal No. 0120093805 (November 30, 2010).
Time Limit for Contacting EEO Counselor Tolled. Complainant contacted an EEO Cou
nselor on February 10, 2010, and subsequently filed a formal complaint alleging
that she was subjected to hostile work environment harassment for a period of ap
proximately 10 years culminating in an incident in late May or early June 2009 w
hen an explicit drawing of Complainant was placed in the men’s restroom. The Agenc
y dismissed the complaint for failure to timely contact an EEO Counselor. On app
eal, the Commission found that the dismissal was improper. The Commission noted
that Complainant provided extensive medical records documenting her in-patient h
ospital stay immediately following the most recent incident. For example, in a l
etter dated February 3, 2010, Complainant’s physician stated that Complainant had
been unable to work since June 2009, was incapable of working at the present tim
e due to symptoms of post traumatic stress disorder, and it was undetermined whe
n she could return to work. Further, the physician later stated that Complainant
had been “incapacitated from initiating EEO counseling.” Thus, the Commission concl
uded that Complainant was sufficiently incapacitated so as to warrant the tollin
g of the time limit for initiating EEO counseling. The Commission also noted tha
t the Agency failed to satisfy its burden of showing Complainant had constructiv
e notice of the applicable time limits. While an Agency supervisor stated that a
n EEO poster was placed on the employee bulletin board and in the lobby, several
employees asserted that the poster was placed in a manner that was not “reasonabl
y geared” to inform Complainant of the limitation period. O’Neill v. U.S. Postal Ser
v., EEOC Appeal No. 0120103027 (October 29, 2010).
EEO Counselor Contact Deemed Timely. Complainant contacted the Agency’s EEO Office
r and Chief of Human Resources to advise them that, from August 2003 until Febru
ary 2005, she served as the acting Ethics Officer without receiving higher pay.
Complainant indicated that she was told the matter was a prohibited personnel pr
actice that should be raised with the Office of Special Counsel (OSC). Complaina
nt received a letter from OSC on January 12, 2007, informing her that the matter
she raised concerned discrimination, and was appropriate for the EEO complaint
process. Complainant contacted the Agency’s EEO Office on February 23, 2007, and s
ubsequently filed a formal complaint with regard to the matter in question. The
Agency dismissed the complaint for failure to timely contact an EEO Counselor. O
n appeal, the Commission noted that a high ranking Agency official initially tol
d Complainant that she did not have an EEO matter and she needed to contact OSC.
The Commission found that the Agency’s EEO Officer and Chief of Human Resources d
issuaded Complainant from initiating an EEO complaint, and Complainant timely co
ntacted the EEO Office once she was informed by OSC that her claim constituted a
n EEO matter. Thus, the Commission concluded that the Agency improperly dismisse
d Complainant’s complaint, and remanded the matter for further processing. Bolden
v. Dep’t of Agric., EEOC Appeal No. 0120093444 (October 21, 2010).
ARTICLE
A DISABILITY CASE UPDATE
(The following article is not intended to be an exhaustive or definitive discuss
ion of a complex area of law, nor is it intended as legal advice. The article is
generally based on EEOC documents available to the public at the Commission’s web
site at www.eeoc.gov, as well as on Commission case law. Some decisions cited ma
y have appeared in previous editions of the Digest. –Ed)
INTRODUCTION
Section 501 of the Rehabilitation Act of 1973, as amended,1 prohibits employment
discrimination on the basis of disability. A qualified individual with a disabi
lity is protected from discrimination with regard to any aspect of employment, i
ncluding hiring, firing, assignments, benefits, and any other term, condition, o
r privilege of employment. An employer may not treat an employee or applicant fo
r employment who is a qualified individual with a disability unfavorably because
he or she has a disability.
COMMISSION DECISIONS
Medical Inquiries
Section 501 of the Rehabilitation Act places certain limitations on an employer’s
ability to make disability-related inquiries or require medical examinations of
employees. The inquiry or examination may be ordered only if it is job-related a
nd consistent with business necessity.2 This means the employer must have a reas
onable belief based on objective evidence that an employee will be unable to per
form the essential functions of the job because of a medical condition or will r
esult in a direct threat to themselves or others, and an employer must seek only
that information necessary to make such a determination.3
In Cofield-Gipson v. Dep’t of Justice,4 Complainant, a Cook Supervisor at a Federa
l Correctional Institution, sustained injuries when a metal food cart fell on he
r, and when she tripped over a pallet. Complainant was given light duty work for
over six months, after which she was notified that her light duty assignment wo
uld be terminated. Complainant was then charged with annual leave when she did n
ot report to work. In addition, the Agency directed Complainant to attend a fitn
ess for duty examination with a psychiatrist pursuant to Complainant’s physician’s r
ecommendation after he was unable to identify any physical problems. Complainant
ultimately filed a formal EEO complaint alleging, among other things, that the
Agency discriminated against her when it ordered her to undergo a psychological
fitness for duty evaluation. Following an investigation, the Agency issued a fin
al decision stating that Complainant was ordered to undergo a psychological eval
uation so the Agency could obtain information on when she could return to work a
nd how her condition impacted her duties. In particular, the Agency indicated th
at it was seeking more information regarding her medical condition in order to p
rovide her with a reasonable accommodation. On appeal, the Commission found that
the Agency failed to meet its burden of showing that a psychological examinatio
n was needed. The Commission stated that the Agency presented no evidence that C
omplainant’s mental state was at issue or that it felt that she was unable to perf
orm the essential functions of her job because of a mental condition. The Commis
sion ordered the Agency, among other things, to investigate Complainant’s entitlem
ent to compensatory damages.
In Snyder v. U.S. Postal Serv.,5 Complainant worked for the Agency as a Mail Pro
cessing Clerk, and due to medical restrictions, her primary duty involved placin
g address labels on pieces of mail that had been repaired so that they could be
returned to customers. According to the record, Complainant complained to manage
ment that other employees were discarding deliverable mail. Agency management in
vestigated Complainant’s allegations, and determined that the mail in question was
undeliverable bulk mail. Complainant’s supervisor indicated that Complainant had
been going through the waste basket on a daily basis after being instructed not
to do so. The following day, Complainant was ordered to undergo a fitness for du
ty (FFD) examination. Complainant underwent a two and one-half hour examination,
and the physician diagnosed her as having delusional and depressive disorders.
He stated that Complainant needed psychiatric treatment because of her failure t
o follow instructions regarding discarded mail and her inability to control her
behavior. The doctor concluded that Complainant was unfit for duty, and the Agen
cy’s Medical Director concurred with the assessment. Complainant was advised that,
in order to return to work, she must initiate treatment with a psychiatrist who
must then submit a written recommendation to the Agency’s medical unit. Complaina
nt complied with the Agency’s requirement, and returned to work several months lat
er. She also filed a formal complaint of disability discrimination.
An AJ held a hearing in the matter, and found that the Agency violated the Rehab
ilitation Act when it ordered Complainant to undergo a psychiatric FFD examinati
on. The Commission affirmed the AJ’s decision on appeal. The Commission stated tha
t the record was devoid of any evidence that would support a reasonable belief t
hat Complainant could not perform the essential functions of her job or posed a
direct threat to herself or other employees. The Agency claimed that Complainant
displayed irrational behavior when she accused another employee of improperly d
iscarding mail, had strained relationships with co-workers, disrupted other empl
oyees, and failed to follow instructions. The Commission stated that while such
conduct may have warranted discipline, it did not lead to the conclusion that th
e Agency reasonably believed Complainant was a direct threat to herself or other
s or was unable to perform the essential functions of her job. The Agency was or
dered to expunge all documentation associated with the FFD examination from Comp
lainant’s personnel files, pay Complainant for any pay lost during the period she
was in a “non-work” status, and credit Complainant for any leave used or lost during
the period in question.
In Morrow v. U.S. Postal Serv.,6 Complainant sought a transfer to a different of
fice in order to join her husband. When it became apparent that she would not be
able to readily obtain a reassignment within her craft, she requested a change
of craft. She was subsequently required to undergo two fitness for duty examinat
ions. The first examination was ordered by the Medical Officer at her current of
fice. The Agency’s policy mandated that Complainant undergo a change of craft fitn
ess for duty examination because she requested reassignment to a more strenuous
position. As a result, Complainant was cleared for duty. The Medical Officer at
the office where Complainant was seeking assignment ordered a second examination
solely because he believed there was an inconsistency in the initial examinatio
n. He did not conduct a physical examination of Complainant, and did not speak t
o or question Complainant or the physician who performed the first examination.
The AJ found that the record evidence established that the Agency did not have a
reasonable belief that Complainant’s ability to perform essential job functions w
ould be impaired by her alleged medical condition in that Complainant was found
fit for duty by the Agency’s own medical officer. The Commission noted that employ
ers may require a medical examination or make disability related inquiries of an
employee only if the examination is job-related and consistent with business ne
cessity. The Commission stated that this requirement is met when the employer ha
s a reasonable belief, based on objective evidence, that (1) an employee’s ability
to perform the essential job functions is impaired by a medical condition; or (
2) that an employee poses a direct threat due to a medical condition. The Commis
sion held that substantial evidence in the record supported the AJ’s determination
that the Medical Officer who ordered the second examination did not have a reas
onable belief that Complainant’s ability to perform the essential job functions wa
s impaired by a medical condition, or that she posed a direct threat due to a me
dical condition. Thus, the Commission found that the Agency discriminated agains
t Complainant. The Agency did not specifically object to the remedies ordered by
the AJ, and, as such, the Commission ordered a back pay award of 450 hours, wit
h interest, benefits, overtime, night pay differential, attorney’s fees, training
for responsible management and other relief.
Reasonable Accommodation
Under the Commission’s regulations, an agency is required to make reasonable accom
modation to the known physical and mental limitations of an otherwise qualified
individual with a disability, unless the agency can show that accommodation woul
d cause an undue hardship.7 As a threshold matter, a complainant must show that
he is an individual with a disability. An individual with a disability is someon
e who has an impairment which substantially limits one or more major life activi
ties, has a record of such an impairment, or is regarded as having such an impai
rment.8 In addition, the complainant must show that he is a qualified individual
with a disability, that is, that he satisfies the requisite skill, experience,
education and other job-related requirements of the position, and can perform th
e duties with or without reasonable accommodation.9 A reasonable accommodation m
ay consist of modifications or adjustments to the work environment or to the man
ner or circumstances under which the position is customarily performed that enab
les a qualified individual with a disability to perform the essential functions
of that position.10
The Complainant in Wagner v. Dep’t of Transp.,11 worked as an Aviation Safety Insp
ector. After undergoing treatment for cancer, he experienced high frequency hear
ing loss which required him to wear hearing aids. In addition, while at work, he
was exposed to noise from two military planes and the noise blew out both of hi
s hearing aids, causing severe trauma and 71 percent hearing loss. Complainant w
as provided with a microphone and hearing aid through the Department of Labor. C
omplainant indicated, however, that he needed the cooperation of others at meeti
ngs to wear or hold the microphone so that he could hear them. Complainant state
d that management resisted using the microphone even after repeated requests to
do so. Complainant subsequently experienced further hearing loss, at which time
he requested an office that would allow him to use a speaker phone so as not to
disturb his co-workers. Complainant was provided with an office without windows
which he initially accepted, but later rejected because it made him feel claustr
ophobic. Complainant requested an office with windows, but the Agency stated tha
t such an office would be located too close to others and the noise from the spe
aker phone would be disruptive. Complainant then requested a special telephone t
hat would transcribe speech into text. Complainant also requested an alternative
job. Both of these requests were denied by Complainant’s Manager. Complainant ult
imately filed a formal EEO complaint alleging that the Agency discriminated agai
nst him and harassed him on the basis of his disability.
The Agency did not contest that Complainant was a qualified person with a disabi
lity. With regard to the claim that Complainant was denied reasonable accommodat
ion, the Commission noted that Complainant made several requests for accommodati
on, and was ultimately provided with the special telephone that could transcribe
speech so that Complainant was able to perform his duties in his cubicle. Thus,
the Commission concluded that the Agency provided Complainant with an effective
accommodation in the form of the special telephone. Nevertheless, the Commissio
n found that the Agency failed to provide an effective accommodation so that he
could hear managers and co-workers. Complainant stated that his Managers refused
to hold the microphone during meetings. Further, the Commission noted that sinc
e management did not set an appropriate example for how to use the microphone, o
ther co-workers would similarly refuse to hold it. As a result, Complainant was
unable to hear and understand what the speakers were saying to him. Thus, althou
gh the Agency provided Complainant with the microphone, management did not coope
rate to make sure the device was effective, and, as such, the Commission found t
hat Complainant was denied an effective accommodation.
The Commission also determined that Complainant was subjected to hostile work en
vironment harassment, in part because of his disability. The Commission noted th
at the events concerning the microphone were not only a denial of reasonable acc
ommodation, but also created a hostile environment. As stated, Managers regularl
y refused to properly place the microphone close to the individual speaking so t
hat Complainant could understand what was being said, and, based on management’s a
ctions, co-workers believed they were not required to properly use the microphon
e. In addition, two Managers mentioned medical retirement to Complainant. One of
the Managers also commented on Complainant’s cough, a remaining side effect of Co
mplainant’s cancer treatments, and used the cough to assert that Complainant had h
ygiene issues. The Commission concluded that the discriminatory hostile work env
ironment and the denial of reasonable accommodation were sufficiently severe as
to result in objectively intolerable working conditions such that Complainant fe
lt compelled to resign. Thus, Complainant proved his claim of constructive disch
arge. The Agency was ordered, among other things, to offer Complainant reinstate
ment to his position, with appropriate back pay and benefits, conduct an investi
gation with regard to Complainant’s claim for damages, and provide EEO training to
all employees in the office where Complainant worked.
In Sutter v. Dep’t of Labor,12 the Commission found that the Agency failed to acco
mmodate Complainant for a four-month period in 2003. Complainant had open-heart
surgery in January 2002, and subsequently had difficulty working. Complainant re
quested to work at home full time because her recuperation from the surgery was
difficult. Her request was partially granted, and she was initially allowed to w
ork at home full time for several weeks, and then allowed to work at home two da
ys each week. Following the Agency’s reorganization, Complainant was assigned to b
e the Agency’s internet communications gatekeeper in February 2003, which included
responding to messages from the public received through the Agency’s web site and
e-mail system. Complainant then submitted a request to either be transferred to
an office in Texas, or to work at home full time as a reasonable accommodation.
By June 2003, Complainant was reporting to the office on average only one day e
ach week. Complainant filed a formal EEO complaint alleging that the Agency deni
ed her reasonable accommodation. Following a hearing, the AJ issued a decision f
inding that the Agency denied Complainant reasonable accommodation for the perio
d from February 2003 until June 12, 2003. The Commission subsequently concurred
with the AJ’s decision on appeal. The Commission noted that, prior to February 200
3, Complainant performed many duties that could not be performed away from her o
ffice. Thus, allowing Complainant to work at home full time was not a reasonable
accommodation. Following the Agency’s reorganization, however, Complainant could
perform all of her duties from home. The Commission stated that the Agency faile
d to demonstrate why it was necessary for her to be in the office from February
2003 until June 12, 2003, at which time the Agency required her to come in no mo
re than one day each week. In addition, Complainant was allowed to work at home
whenever environmental conditions did not allow her to come into the office. The
Commission stated that Complainant presented no persuasive evidence that the ar
rangement after June 12, 2003, was an ineffective accommodation. The Agency was
ordered to pay Complainant $10,000 in proven compensatory damages, pay her prove
n attorney’s fees and costs, and restore annual and sick leave used during the per
iod of discrimination.
The Complainant in Ramos v. Dep’t of Def.,13 was hired as a temporary (one-year ap
pointment) Store Worker, and was responsible for preparing and maintaining stock
levels of grocery items. Nine months later, he suffered a heart attack and was
required to undergo triple-bypass surgery. The Agency placed Complainant on appr
oved leave during his three month absence. Complainant then returned to work wit
h an indefinite 20 pound lifting restriction. The Agency extended Complainant’s ap
pointment for an additional year, and adjusted his duties to accommodate his lif
ting restriction. Approximately six months later, Complainant experienced chest
pain, and was examined for a possible pulmonary embolism. Complainant’s doctor adv
ised him not to work for five weeks, and restricted him from heavy lifting, and
pulling or pushing more than five pounds during that period. After exhausting hi
s leave, Complainant requested Family and Medical Leave Act leave. The Agency, h
owever, terminated Complainant’s appointment, stating that he was unable to perfor
m his duties because of his extended absences. Complainant then filed a formal E
EO complaint alleging that the Agency discriminated against him on the basis of
his disability.
Following a hearing in the matter, the AJ found that Complainant was discriminat
ed against as alleged. The AJ initially determined that Complainant was an indiv
idual with a disability based upon the physical limitations he experienced as a
result of his heart attack and subsequent complications. The AJ noted that while
the Agency initially accommodated Complainant after his surgery by giving him t
ime off, the Agency failed to do so after Complainant’s later setback. On appeal,
the Commission affirmed the AJ’s findings. The Commission noted that the evidence
showed that Complainant’s request for leave for the pulmonary condition was not th
e sole consideration in terminating his appointment, and that Complainant’s prior
extended absence for his cardiac condition factored heavily into the decision. C
omplainant’s supervisor testified that he was aware of Complainant’s heart attack an
d three month absence at the time he proposed Complainant’s removal. In addition,
the Agency acknowledged that the decision to terminate Complainant’s appointment w
as based upon Complainant’s unavailability for work due to his medical conditions.
The Commission stated that Complainant had a record of a disability that had pr
eviously been accommodated, and, thus, the decision to terminate Complainant was
in large part due to his history of disability-related absences. The Commission
noted that an employer may not penalize an employee for work missed during leav
e taken as a reasonable accommodation. In this case, the Commission found that t
he Agency did just that when it terminated Complainant when he made an additiona
l request for medical leave six months after being accommodated for his heart co
ndition. The Commission rejected the Agency’s assertion that it would have been an
undue hardship to accommodate Complainant with additional weeks of leave. The r
ecord showed that the Commissary had a large staff, and Complainant’s duties were
covered by others after his termination. The Agency was ordered to, among other
things, offer Complainant a permanent position as a Store Worker or a substantia
lly equivalent position, with appropriate back pay and benefits, and pay Complai
nant $4,000 in proven compensatory damages.
According to the record, the Complainant in Bowers v. Dep’t of Def.,14 was born wi
th the four fingers of her left hand on the same ligament, resulting in her havi
ng no dexterity or grasping ability with regard to those fingers. Further, Compl
ainant is unable to perform any meaningful lifting with her left hand. Due to he
r overuse of her right hand to compensate, Complainant experiences bursitis, ten
donitis, and neuritis in her right arm. Complainant’s job as a personnel security
specialist required a substantial amount of typing, which was difficult for her,
and, in August 2002, Complainant’s production standards increased by several unit
s per day. Complainant initially requested several accommodations, including low
er production levels and the use of adaptive equipment, in order to keep up with
her job responsibilities. The Agency denied Complainant’s request to lower her pr
oduction quotas, but provided Complainant with a one-handed keyboard. Complainan
t also applied for a vacant Privacy Act specialist position that involved less t
yping, and later asked to be reassigned to the position as an accommodation. The
Agency denied Complainant’s request for a reassignment, and ultimately offered th
e Privacy Act specialist position to a former incumbent. After 30 days of using
the new keyboard, Complainant’s performance had increased only slightly, and she d
id not meet her performance requirements. Complainant was placed in a temporary
detail position, and ultimately left the agency on disability retirement.
Complainant filed a formal EEO complaint alleging that she was discriminated aga
inst when the Agency denied her requests for reasonable accommodation. Following
a hearing, an AJ found that the Agency subjected Complainant to disability disc
rimination, and the Commission affirmed the AJ’s decision on appeal. The Commissio
n determined that Complainant was an individual with a disability, because she i
s substantially limited in her ability to carry, perform household tasks, and pe
rform fine manipulation. In addition, she is substantially limited in the abilit
y to work in both a class of jobs and a range of jobs requiring the use of two h
ands or even one healthy hand. Complainant’s physician reported that Complainant h
as very little motion in the fingers of her left hand, decreased mobility in the
joints, and essentially has use of only her right hand, which suffers from over
use. Further, in this case, the Commission concluded that the Agency should have
reassigned Complainant to the Privacy Act specialist position, as Complainant e
stablished that a vacancy existed for which she was qualified, and she requested
reassignment into the position on several occasions. The position was vacant at
the time the 30-day trial period for the one-handed keyboard ended, and remaine
d vacant for several months after Complainant was denied the position. The Agenc
y was ordered to, among other things, pay Complainant $26,500 in non-pecuniary d
amages, and $364.52 in pecuniary damages, and compensate Complainant for 12 hour
s of annual leave used as a result of the discrimination.
The Complainant in Durr v. Dep’t of the Treasury,15 was diagnosed with prostate ca
ncer, and needed to undergo radiation therapy. On March 22, 2006, Complainant as
ked to use four hours of sick leave and work four hours at home during this time
. Complainant’s supervisor initially approved his request for sick leave, but stat
ed that additional information would be necessary with regard to his request to
work at home. Complainant submitted a letter from his doctor stating that he wou
ld undergo eight weeks of radiation therapy. The following week, Complainant aga
in made a request for reasonable accommodation. The Agency subsequently referred
Complainant’s request to a Federal Occupational Health doctor, who informed the A
gency, on May 10, 2006, that Complainant should be allowed to work at home and u
se sick leave as a reasonable accommodation. On May 25, 2006, Complainant’s superv
isor asked for further documentation of Complainant’s treatments, stating that the
initial documentation indicated that Complainant was only going to have eight w
eeks of treatment. Although Complainant complied with the request by submitting
a letter from his doctor stating that the treatment was then expected to last 24
months, Complainant’s supervisor denied his request to work at home. Complainant
subsequently requested four hours of sick leave and four hours of office work ea
ch day during his treatment. Complainant’s supervisor again asked for documentatio
n, and Complainant cited the original medical documentation he had already provi
ded. Thereafter, he was charged with being absent without leave instead of grant
ed sick leave. Complainant filed a complaint of disability discrimination.
On appeal, the Commission noted that the Agency did not contest that Complainant
is a qualified individual with a disability. In addition, the Agency found that
it was liable for the delay and ultimate denial of a reasonable accommodation t
o work at home. The Commission determined that the Agency was also liable for th
e denial of Complainant’s request to use sick leave and subsequent charges of abse
nt without leave. The Commission noted that it was clear from the record that Co
mplainant was continuing to request a reasonable accommodation when he asked to
use four hours of sick leave each day due to his cancer treatments. Complainant’s
choice not to request reconsideration of his initial request to work at home did
not absolve the Agency of its duty under the Rehabilitation Act to accommodate
Complainant when he later requested sick leave. Further, the Commission stated t
hat the medical documentation that Complainant initially provided was sufficient
, as it explained his diagnosis, prognosis, side effects of the treatment, and a
n estimate that the treatments would last two years. The Agency was ordered to c
onduct a supplemental investigation with regard to Complainant’s entitlement to co
mpensatory damages, remove the absent without leave charges from all records, an
d compensate Complainant for the time he was charged with being absent without l
eave as a result of the denial of accommodation.
In Blount v. Dep’t of Homeland Sec.,16 Complainant, an Immigration Status Verifica
tion Officer, filed a formal complaint alleging discrimination on the basis of h
is 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 accommodati
on. Complainant made his requests by telephone. During the investigation of his
complaint, Complainant asserted that the Agency’s actions resulted in his inabilit
y to work, and he sought disability retirement. On appeal, the Commission initia
lly found that Complainant was a qualified individual with a disability. Complai
nant requested the reasonable accommodation of working at home, at least part ti
me, while undergoing rehabilitation. One management official attempted to assist
Complainant in pursuit of a reasonable accommodation, but was told that the mat
ter was not his concern and that there was no work for Complainant. That officia
l testified, however, that there were many tasks Complainant could have performe
d at home which would have aided in the mission of the Agency, and that it was p
ossible for Complainant to access the Agency’s computer databases from home. Compl
ainant also stated that he would have been able to access the Agency’s computer ne
twork 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 Commissi
on found that the Agency made no attempt to determine what Complainant’s limitatio
ns were or which of his essential job functions could be modified, and made no a
ttempt to explore the possibility of other potential accommodations. Instead, th
e 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.
In Hamblin v. Dep’t of Justice,17 the Commission affirmed the AJ’s finding that the
Agency discriminated against Complainant on the basis of her disability when it
failed to provide her with reasonable accommodation and ultimately terminated he
r from employment. According to the record, Complainant had previously been gran
ted an early work schedule so that she could attend medical appointments associa
ted with her condition. In 2002, however, Complainant was assigned to a new supe
rvisor who revoked her flexible schedule, and returned her to the later, regular
schedule. Subsequently, Complainant was rated “Does Not Meet Expectations” on her a
nnual performance appraisal, and ultimately terminated. Following a hearing, the
AJ found that Complainant was subjected to disability discrimination. On appeal
, the Commission noted that the Agency did not contest the AJ’s finding that Compl
ainant was an individual with a disability. Further, the Commission noted that t
he evidence showed that Complainant performed the duties of her position in a sa
tisfactory manner before her new supervisor revoked her accommodation. The recor
d showed that management at Complainant’s facility was aware of Complainant’s condit
ion and her need to work an early schedule to avoid exhaustion and concentration
problems, and attend doctor’s appointments. The Commission determined that the Ag
ency 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 gra
nted her an early work schedule for over three years. Finally, the Commission co
ncurred with the AJ’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 appro
priate back pay, and pay Complainant $10,000 in proven compensatory damages.
Disparate Treatment
In Estate of Roop v. Dep’t of Homeland Sec.,18 the Commission found that the Agenc
y discriminated against Complainant on the basis of his disability when it remov
ed him from a detail position. According to the record, Complainant was hired by
the Agency as a Transportation Security Screener, and subsequently received a l
ight duty assignment almost two years later. In September 2004, Complainant appl
ied and was selected to be a TSA Approved Instructor. In February 2005, Complain
ant began performing Screener duties for two hours in the mornings as part of an
Agency requirement that all employees be on the screening floor during specifie
d hours. Complainant was able to perform the screener duties in this limited con
text, and spent the remainder of his time working as an Instructor. Complainant’s
performance evaluation reflected that he was performing his job well, and his su
pervisors were satisfied with his work. In September 2005, Complainant was infor
med that he was in a light duty status, and, since the Agency was not making lig
ht duty assignments at that time, Complainant was not permitted to work. Complai
nant contacted a Human Resources Specialist to explain that, as an Instructor, h
e did not require light duty work, but was informed that his Instructor position
was immaterial and he could not return to the screening floor. Complainant did
not return to work and ultimately applied for disability retirement. Complainant
also filed a formal EEO complaint alleging that the Agency discriminated agains
t him on the basis of his disability.
On appeal, the Commission initially rejected the Agency’s argument that it did not
have to accommodate Complainant because he could no longer meet the statutory r
equirements of the Transportation Security Screener position. The Commission not
ed that Complainant was not challenging a statutorily mandated qualification sta
ndard. Complainant was working as an Instructor and not a Screener, and there wa
s no evidence he was unable to perform his Instructor duties. In fact, the recor
d showed that he was successfully performing those duties, and did not need any
accommodation. Further, while the Agency asserted that the Instructor duties wer
e not part of a permanent position, but instead constituted a temporary detail a
ssignment, the record contained substantial evidence that the position was in fa
ct full time and long term. Complainant had performed the duties for approximate
ly one year, and a Supervisor stated that Instructors were in such high demand t
hat individuals were not removed from that position after one year. As justifica
tion for its actions, the Agency stated that it was merely enforcing the 180 day
limitation on light duty assignments. The Commission noted, however, that the A
gency’s argument assumed that Complainant was a Screener and not an Instructor. Ac
cording to the record, Complainant did not renew his request for light duty afte
r being chosen as an Instructor, and neither his Supervisor nor the Screening Ma
nager were aware of Complainant’s alleged light duty status at the time of the inc
ident in question. Thus, the Commission concluded that the Agency discriminated
against Complainant when it removed him from his Instructor position. The Agency
was ordered, among other things, to pay Complainant an appropriate amount of ba
ck pay, as well as $150,000 in proven compensatory damages.
Footnotes
1 29 U.S.C. § 791, et seq.
2 29 C.F.R. §§ 1630.13(b), 14(c).
3 Id.
4 EEOC Appeal No. 0120073270 (July 9, 2010), request for reconsideration denied
EEOC Request No. 0520100533 (November 18, 2010).
5 EEOC Appeal No. 0720080050 (December 8, 2009).
6 EEOC Appeal No. 0720070058 (November 13, 2009), request for reconsideration de
nied EEOC Request No. 0520100159 (May 28, 2010).
7 29 C.F.R. § 1630.9, EEOC Enforcement Guidance on Reasonable Accommodation and Un
due Hardship under the Americans with Disabilities Act (revised October 17, 2002
).
8 29 C.F.R. 1630.2(g).
9 29 C.F.R. § 1630.2(m).
10 29 C.F.R. § 1630.2(o)(ii).
11 EEOC Appeal No. 0120103125 (December 1, 2010).
12 EEOC Appeal No. 0120080937 (October 22, 2010).
13 EEOC Appeal No. 0720090055 (April 12, 2010), request for reconsideration deni
ed EEOC Request No. 0520100358 (September 29, 2010).
14 EEOC Appeal No. 0720070012 (March 22, 2010).
15 EEOC Appeal No. 0120080078 (February 19, 2010).
16 EEOC Appeal No. 0720070010 (October 21, 2009), request for reconsideration de
nied EEOC Request No. 0520100148 (April 16, 2010).
17 EEOC Appeal No. 0720070041 (September 3, 2009), request for reconsideration d
enied EEOC Request No. 0520100012 (March 31, 2010).
18 EEOC Appeal No. 0720090056 (October 21, 2010).