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The DIGEST Of Equal Employment Opportunity Law

Volume XIII, No. 2

Office of Federal Operations

Spring Quarter 2002


Inside

Selected EEOC Decisions on:

Article: A Survey of Recent Findings of Discrimination


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

Carlton M. Hadden, Director, OFO

Donald Names, Director, OFO's Special Services Staff

Digest Staff

Editor: Joan Hannan

Writers: Arnold Rubin, Dann Determan, Lori Grant, Navarro Pulley

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


Selected EEOC Decisions

Accent Discrimination

Direct evidence found. The agency found direct evidence of national origin (Korean) discrimination where the selecting official said that complainant would never be promoted because her accent made her too difficult to understand. The agency found no evidence that complainant's accent would have interfered with her ability to perform a Budget Analyst position. On appeal, the Commission found that the agency failed to meet its burden of showing, by clear and convincing evidence, that it would not have promoted complainant during the period at issue even absent discrimination. The Commission noted that the agency had ample opportunity to produce such evidence. EEOC noted that a mere assertion of a legitimate motive without additional evidence is insufficient in direct evidence cases such as this one. As part of relief provided to complainant in this case, the Commission ordered promotion with back pay. Stone v. Department of the Treasury (Bureau of Public Debt), EEOC Appeal No. 01A02572 (July 6, 2001), request to reconsider denied, EEOC Request No. 05A11013 (January 10, 2002).

Adverse Inference

The agency destroyed records relevant to the instant claim. The Commission decided that the agency had adequate notice of the claim, yet violated its obligation to maintain the records. The record destruction, along with other cited reasons, justified sanction by imposition of an adverse inference against the agency, the Commission ruled. Based on the adverse inference, the Commission determined that the record failed to show a legitimate nondiscriminatory reason for the agency's action, leading to a conclusion that complainant prevailed in her claim. Cottrell v. Department of Transportation, EEOC Request No. 05991163 (January 16, 2002).

Attorney's Fees

Complainant entitled to attorney's fees. Because complainant had prevailed in her claim that the agency had breached a settlement agreement, she was entitled to an award of attorney's fees for work done in connection with her appeal. Spriesterbach v. United States Postal Service, EEOC Request No. 05990158 (November 23, 2001).

Reduction in fees proper. The Commission granted complainant's RTR and modified the previous decision to include an award of all fees reasonably incurred in obtaining EEOC's favorable decision on appeal. However, the Commission found reasonable the previous decision's 10% reduction in fees where the fee petition submitted to the agency failed to break out the compensable and non-compensable work done by complainant's attorney. Gray v. United States Postal Service, EEOC Request No. 05981074 (October 4, 2001).

Burden of Proof

Burden of proof improperly shifted. The Commission found that the EEOC Administrative Judge (AJ) had incorrectly placed the burden of proof on the agency to show it did not discriminate against complainant, as in indirect evidence cases such as this, the agency's only obligation was to state the reasons for its action. The Commission found that the agency's proffer was sufficient to satisfy its burden of production to articulate a legitimate, nondiscriminatory reason for complainant's nonselection (e.g., she performed poorly in her interview). Flynn-DeGroff v. United States Postal Service, EEOC Appeal No. 07A0039 (November 23, 2001).

Civil Actions

Complaint reinstated. A district court dismissed complainant's class action on the grounds that she had failed to exhaust her administrative remedies. Because the civil action was no longer pending, EEOC ordered the administrative class complaint reinstated absent evidence that the civil action had been dismissed with prejudice. Artis, et al. v. Federal Reserve System, EEOC Request No. EEOC Request No. 05960266 (August 10, 2000).

Continuing Violation

Continuing violation doctrine explained. To state a timely raised continuing violation claim, a complainant must allege facts that are sufficient to indicate that he or she may have been subjected to an ongoing unlawful practice which continued into the 45-day period for EEO counselor contact. That the complainant had a reasonable suspicion of discrimination more than 45 days before the contact will not preclude acceptance of an otherwise timely claim of ongoing discrimination. Anisman v. Department of Treasury, EEOC Request No. 05A00283 (April 12, 2001).

Related acts. In late 1998, complainant alleged discriminatory denial of overtime "since 1997 and continuing." Her claim was dismissed by the agency under a reasonable suspicion standard. The Commission found that the denial of overtime was identical throughout the period of the claim, and ruled that complainant established a continuing violation. Crosby v. United States Postal Service, EEOC Appeal No. 01996244 (October 4, 2001).

Continuing violation claim not available. The Commission affirmed the agency's dismissal of complainant's three complaints and rejected his argument that the complaints constituted a continuing violation. EEOC noted that complainant had filed some 20 discrimination complaints since 1990, more than half being filed since he resigned in 1994. Complainant argued that his EEO complaints showed a discriminatory course of conduct by the agency. Held: Where, as here, none of the claims are dismissed for reasons of timeliness, but, instead, on other grounds, a claim of continuing violation does not lie. Li v. Department of the Navy, EEOC Appeal Nos. 01993099, 01993956, 01996057 (August 31, 2001).

Not a continuing violation. In December 2000, complainant initiated EEO Counselor contact to allege that she had been denied a promotion/classification since August 2000. The claim was dismissed as untimely, and EEOC affirmed the dismissal. EEOC found that the most recent discriminatory event identified by complainant occurred in August 2000, and that she identified no acts of purported discrimination occurring within 45 days of her initial EEO contact. Anthony v. Department of the Navy, EEOC Appeal No. 01A13076 (July 30, 2001)

Disability Law - Direct Threat

Direct Threat. In affirming the agency's decision, the Commission found that the agency acted reasonably when it issued complainant a Letter of Exclusion based on its determination that it could not reasonably accommodate complainant's disability (delusional disorder), without posing a direct threat, i.e., a significant risk of substantial harm which cannot be eliminated or reduced by reasonable accommodation. EEOC noted that such determinations had to be based on individualized assessments. Parker, Jr. v. Department of the Navy, EEOC Appeal No. 01981917 (November 27, 2001).

Disability Law - Medical Examination

Improper fitness for duty (FFD) examination. Evidence showed that complainant over a period of years took notes on and criticized the actions of coworkers, causing friction, stress, and other problems in the workplace. Agency managers did not discipline complainant for his conduct and instead directed him to undergo a psychiatric FFD. The Commission concluded that the FFD was unlawful. The agency failed to show that the medical inquiry was job-related and consistent with business necessity, stated the Commission, since it failed to show that it had a reasonable belief that complainant would be unable to perform essential functions or would pose a direct threat. The Commission also observed that limits on disability-related inquiries and medical examinations apply to all employees, not just those with disabilities. Clark v. United States Postal Service, EEOC Appeal No. 01992682 (November 20, 2001).

Disability Law - Medical Records

Medical records. The agency violated the Rehabilitation Act by disclosing medical information pertaining to complainant in a manner that did not conform to EEOC regulations. The disclosure warranted an award to complainant of $2,000 in compensatory damages. Brunnell v. United States Postal Service, EEOC Appeal No. 07A10009 (July 5, 2001).

Failure to Cooperate

Dismissal improper absent notice and insufficient record. An AJ granted complainant's request to withdraw for 90 days her request for a hearing. Complainant was told that if she failed to renew her request within 90 days the agency could dismiss her complainant for failure to proceed. Shortly after the 90 day period expired, the agency dismissed the complaint for failure to cooperate. On appeal, the Commission reversed the dismissal, ruling that an agency may not dismiss a complaint for failure to cooperate without the 15-day notice required under EEOC's regulations. In addition, the Commission restated the principle that dismissal for failure to cooperate is permitted only in cases where there is in sufficient information on which to base an adjudication and the complainant has engaged in delay or contumacious conduct. Schultze v. Department of the Army, EEOC Appeal No. 01995369 (July 11, 2001).

Grievance Decisions

Not a final decision. Complainant raised a claim of discrimination in a negotiated grievance proceeding. He subsequently filed an EEO complaint which was dismissed. The Commission agreed with the agency that the grievance decision was not a "final decision of the agency" because complainant had the right to submit his grievance to the next level. Lee v. Department of Transportation, EEOC Request No. 05990592 (August 3, 2000).

Harassment/Hostile Work Environment

Noose in workplace creates offensive work environment. Complainant, a Black Maintenance Mechanic, claimed discrimination when he found a hangman's noose hanging near his toolbox. An AJ summarily found for the agency. The AJ found that complainant failed to establish that this one incident rose to the level of a hostile work environment, and that even if complainant had been subjected to a hostile work environment, there was no basis to impute liability to the agency, as agency officials took prompt remedial action. The agency, among other things, suspended the white employee who admitted he had tied the noose, and reiterated its policy of zero tolerance for violence. The Commission disagreed with the AJ that the noose incident was not severe or pervasive enough on its own to constitute a hostile work environment. The Commission noted that the noose was such a severely violent symbol that complainant reasonably felt threatened by his discovery. However, the Commission agreed with the AJ's finding that complainant failed to establish a basis for imputing employer liability for his co-worker's actions. Posey v. United States Postal Service, EEOC Appeal No. 01986619 (July 10, 2001).

Jurisdiction

Constructive discharge case kept with EEOC for judicial economy. Issues concerning termination and discharge ordinarily fall within MSPB's jurisdiction. This case contained a constructive discharge claim which complainant did not articulate until after she filed her formal complaint. The agency failed to address the claim in its decision on the merits. Since this complainthad been pending in the EEO process for several years, EEOC decided to retain jurisdiction. The Commission cited past holdings where complaints were firmly enmeshed in the EEO forum, and where it would better serve the interest of judicial economy to retain jurisdiction rather than remand the case for consideration to the MSPB process.Lyons v. Department of Veterans Affairs, EEOC Request No. 05981169 (July 30, 2001).

Remedies

More than make-whole relief. Complainant's fellowship was discriminatorily terminated. The relief ordered in a prior Commission decision had included, among other things, either renewal of the fellowship or conversion to a permanent position. The Commission granted the agency's RTR, which argued that the previous decision's order was in excess of make whole relief. The agency contended that it should have the additional option to deny both the renewal and the conversion. The Commission agreed and modified its order accordingly. Packard and Komoriya v. Department of Health and Human Services (Food and Drug Administration), EEOC Request Nos. 05A10499 and 05A10506 (November 23, 2001).

Two year limit on back pay. The back pay period ordered in a prior decision was modified on RTR on the Commission's own motion. The Commission stated that back pay must be limited to two years prior to the date on which the complaint was originally filed, in accordance with Title VII of the Civil Rights Act of 1964, as amended. Stone v. Department of the Treasury (Bureau of Public Debt) EEOC Request No. 05A11013 (January 10, 2002).

Retaliation

No qualifiers limit the scope of retaliation provisions. Statutory retaliation clauses prohibit any discrimination that is reasonably likely to deter protected activity. Battaglia v. Federal Deposit Insurance Corporation, EEOC Appeal No. 01985358 (July 30, 2001), citing EEOC's Compliance Manual on Retaliation.

Agency action reasonably likely to deter protected activity. Complainant claimed that, after he filed his EEO complaint, his performance rating was reduced. He also averred that agency officials indicated that complainant and those who testified on his behalf were "whiners" and "crybabies." EEOC held that such treatment, when engaged in by management, was reasonably likely to deter the charging party or others from engaging in protected activity. Pallante v. Department of Justice (Immigration and Naturalization Service), EEOC Appeal No. 01A04996 (July 6, 2001). See also McPherran v. Department of the Treasury, EEOC Appeal No. 01A11357 (August 2, 2001) (adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation).

Settlement Agreements

Not proper to interpret agreements as providing indefinite employment in exact position. Complainant was reassigned as called for in a settlement agreement, and held the new position for more than a year before the position was reclassified and ultimately downgraded. The Commission found that the change in her position was not a breach of the agreement, holding that where an individual bargains for a position without any specific terms as to length of service, it would be improper to interpret the reasonable intentions of the parties to include employment in that exact position ad infinitum. Buck v. Department of Veterans Affairs, EEOC Appeal No. 01A12839 (July 6, 2001).

Substantial compliance. The Commission found that the agency had failed to take any action to convene a meeting as it had promised to do in the settlement agreement. However, EEOC also found that the agency discovered its oversight two weeks later, and immediately contacted complainant in order to hold the required meeting. Held: the agency substantially complied with the agreement. The Commission found no evidence of bad faith by the agency; that it had immediately attempted to cure the breach; that it had repeatedly attempted to schedule a meeting and that it was still willing to do so. Tshabalala v. Department of Agriculture, EEOC Appeal No. 01A10068 (July 6, 2001).

Timely allegation of breach. Reversing the Navy's decision that complainant's breach claim was untimely, the Commission noted that complainant had continuously sought to obtain agency compliance with the settlement agreement. Lambert v. Department of the Navy, EEOC Appeal No. 01A02716 (February 7, 2001).

Changes in circumstances. Complainant claimed in 1996 that certain duties specified in a 1988 settlement agreement were no longer provided to him. EEOC found that complainant failed to show that these duties were still relevant and not obsolete, and found no breach. Bruce v. United States Postal Service, EEOC Appeal No. 01995967 (June 21, 2001).

Standards of Appellate Review

New evidence not generally accepted on appeal. As a general rule, no new evidence will be considered on appeal unless there is an affirmative showing that the evidence was not reasonably available prior to or during the investigation or during the hearing process. Presley v. United States Postal Service, EEOC Request No. 05980656 (September 20, 2001), citing MD-110, 9-15.

Summary Judgment

Material facts at issue. The Commission vacated and remanded the agency's final decision rejecting the AJ's finding of discrimination without a hearing. Citing several genuine issues of material fact that were present in the case, the Commission held that the AJ improperly issued a decision without a hearing, and ordered the agency to submit the case to the appropriate EEOC office for a hearing on the merits. Dotson v. Department of Veterans Affairs, EEOC Appeal Nos. 07A10016, 01A10761 (August 8, 2001)

Summary judgment improper. Under a de novo standard of review, the Commission concluded that it was error for an AJ to grant summary judgment in favor of complainant on an unasserted Equal Pay Act (EPA) claim, without giving the agency an opportunity to be heard. As to complainant's Title VII claim, an evidentiary hearing should have been held inasmuch as the record contained evidence supporting both sides of the issue as to whether the agency's nondiscriminatory reasons for not promoting complainant were a pretext for discrimination. Wiley v. Department of the Treasury, EEOC Appeal No. 01972118 (June 27, 2001).

Hearing required. The Commission found that the AJ erred in concluding that there were no genuine issues of material fact, and in rendering summary judgment. Noting that complainant's evidence must be believed at the summary judgment stage, and all justifiable inferences must be drawn in her favor, the Commission found that the attitude of an official, reflected in a memorandum that he wrote, could indicate that complainant was subjected to a hostile work environment based on discrimination. Because the official played such a central role in the incidents at issue, the Commission ruled that there was a need for "strident-cross examination," and a need to weigh conflicting testimony. The decision discusses and defines the concept of 'genuine issue of material fact.' The judgment was reversed and the complaint was remanded for a hearing. Dare v. Department of the Air Force, EEOC Appeal No. 01984186 (July 26, 2001).

Timeliness

Reasonable suspicion imputed. Reasonable suspicion of discrimination was imputed to the complainant when he was issued a Notice of Removal and he entered into a last chance agreement. Covarrubias v. United States Postal Service, EEOC Appeal No. 01A11219 (July 6, 2001), RTR denied, EEOC Request No. 05A10953 (October 19, 2001).

Reasonable suspicion not imputed. Although cleared for work with medical restrictions, complainant for a period of time was denied the opportunity to return to work. He initiated EEO counseling over 45 days after he returned to work, but within 45 days of the time when he became aware that a co-worker was allowed to work within his restrictions and was also allowed to work overtime. The Commission was persuaded that complainant first developed a reasonable suspicion of discrimination at the point when he became aware of the treatment of the coworker, and found an extension of the time limit for initiating EEO contact was warranted. Flores v. United States Postal Service, EEOC Appeal No. 01A13193 (July 30, 2001).

Inadequate proof of posting. The Commission found that the agency had failed to meet its burden of providing sufficient evidence to support a determination that the agency had given complainant notice of the applicable time limits for initiating Counselor contact. The Commission cited EEOC precedent that a generalized affirmation attesting to posted EEO information, absent specific evidence that the poster contained notice of the time limits, was insufficient to conclude that complainant had constructive knowledge of the time limits for EEO Counselor contact. The Commission also noted that the EEO poster submitted by the agency indicated a time limit of 30 days, whereas the time limitation had been extended to 45 days in EEOC's regulations that went into effect in October 1992. Scott v. United States Postal Service, EEOC Appeal No. 01A02092 (July 11, 2001).

Waivers

Agency ordered to address waiver issue in ADEA settlement. A complaint claiming age discrimination was settled. Complainant subsequently claimed that the agency had breached the agreement, asserting among other things that he had not entered into the agreement voluntarily and did not completely understand its terms and provisions. On appeal, the Commission found applicable the provisions of the Older Workers Benefit Protection Act (OWBPA) because the agreement purported to resolve complainant's claim of age discrimination. The Commission noted that the agreement did not specifically refer to a waiver of complainant's rights, that it was unclear whether complainant had been afforded a reasonable period of time in which to consider the agreement, and unclear whether he was advised in writing to consult with an attorney prior to executing the agreement. The agency was ordered to address, on remand, whether complainant's waiver of his ADEA claim met the standards of the OWBPA. If the agency found the waiver was insufficient, then the agency had to reinstate the complaint. Hannon v. Department of Defense (Defense Commissary Agency), EEOC Appeal No. 01A00956 (July 5, 2001).

A Survey of Recent Findings of Discrimination

This is a survey of selected recent discrimination findings made by the EEOC. These selected decisions include findings of race, age, sex, and disability discrimination, unlawful harassment, and reprisal. Agencies are also put on particular notice that, under the Commission's revised regulations set forth at 29 C.F.R. Part 1614 (November 9, 1999), EEOC will not overturn the factual findings of its Administrative Judges where there is substantial evidence in the record to support those findings.

CBA Does Not Preclude Finding of Disability Discrimination

Complainant, a night shift Distribution Clerk with paranoid schizophrenia, sought permanent reassignment to the day shift in order to accommodate his disability. His request was based, in part, on the significant side effects he was experiencing from the medication he took daily to control his symptoms. The medication was taken at night, and its sedating effects made it difficult for complainant to function properly at work. In addition, complainant's doctor noted that his condition made him very vulnerable to stress and diagnosed anxieties and fears he was experiencing by working at night. The physician concluded that the day tour would enable complainant to regulate his sleep periods and maintain a more stable emotional state. It was also noted that his condition improved considerably during those periods when the agency accommodated complainant by assigning him to the day shift for several months at a time.

The agency denied complainant's request, arguing that the request was in effect a request for reassignment which had to comply with the seniority provisions of the agency's collective bargaining agreement (CBA). The agency argued that this constituted an undue hardship. Complainant filed an EEO complaint and requested a hearing before an EEOC Administrative Judge (AJ). The AJ determined that the CBA provided options for medically necessary permanent reassignments. The AJ found that complainant's request was medically legitimate and that the agency had failed to demonstrate undue hardship. On appeal, the Commission agreed with the AJ and found that the agency had failed to reasonably accommodate complainant. The agency was ordered to reassign complainant to the day shift as recommended by his physicians, and to restore any leave used or benefits lost due to the discrimination. Woodley v. United States Postal Service, EEOC Appeal No. 01972665 (July 13, 2000).

Commission Finds Agency Failed To Accommodate Complainant's Disability When She Was Not Reassigned

An EEOC AJ found that the Social Security Administration had discriminated against complainant on the basis of disability, because its failure to laterally transfer her into the position of Reader constituted failure to accommodate her disability. In affirming the AJ, the Commission applied the substantial evidence rule, which provides that all posthearing factual findings by an AJ will be upheld on appeal if supported by substantial evidence in the record, i.e., relevant evidence that reasonable minds might accept as sufficient to support a conclusion.

The Commission found that complainant was a qualified individual with a disability, having made the best qualified selection list (BQL) for the Reader position. With regard to her disability, the Commission noted that complainant had been born with severe spina bifida, a congenital birth defect which causes paraplegia and sensation loss, among other things. She suffered from very poor balance, pain and weakness in her back and legs, and limp feet. As a result of spina bifida, complainant also developed a condition which caused her to have difficulties with complex mathematical calculations, and which contributed to the problems she had in performing the duties of her position as a Clerk (Typing), duties that involved maintaining time and attendance under an agency system that was relatively complex. Complainant had a substantial number of errors and, despite agency efforts to assist her, her performance did not improve. The agency removed complainant in July 1993 due to her inability to perform the essential functions of her position, i.e., the time and attendance duties.

A few months before complainant was removed, the agency learned that a blind Claims Representative would transfer to complainant's facility and needed a Reader to assist her. Testimony at the hearing showed that officials considered transferring complainant into the Reader position. The agency decided to issue a vacancy announcement for the position instead. It was issued shortly after complainant's removal. Complainant applied but was not selected. The Commission rejected the agency's argument that the Reader position did not constitute a vacant position, to which complainant could have been reassigned without posing an undue hardship on the agency. The Commission also rejected the agency's assertion that special needs positions, such as the Reader position in this case, are not included in the class of positions available for reassignment under the Rehabilitation Act. Accordingly, the Commission found that the agency had purposefully decided not to offer complainant the RA position but, instead, proceeded with her removal. In addition, the Commission found that the agency had not shown that it had made a good faith effort to reasonably accommodate complainant. Thus, as part of the remedies it ordered, the Commission directed the agency to consider complainant's entitlement to an award of compensatory damages. Johnson v. Social Security Administration, EEOC Appeal No. 01973945 (July 13, 2000).

Arbitrator's Decision Reversed: Agency Failed to Accommodate Complainant's Disability

This case involved an appeal from an arbitrator's decision. Complainant, a Claims Clerk and 17-year agency veteran, was deaf. She communicated with others through American Sign Language (ASL). The agency had hired an ASL interpreter in 1993, for the benefit of complainant and two other deaf employees. In 1994, complainant filed a grievance claiming retaliation and disability discrimination regarding four recent disciplinary actions. She was given written reprimands and suspensions for insubordination toward her supervisor and for failing to complete a work assignment given by her supervisor. She was also disciplined for her conduct in situations in which she had disputes with the interpreter. In an ensuing disciplinary discussion, the agency refused to provide complainant with a different ASL interpreter as complainant had requested and as provided by agency rules. Instead, the agency required complainant to participate in the disciplinary discussion using the interpreter who was a party to the argument.

The Commission found that complainant had shown the agency's actions were a pretext for disability discrimination. The Commission noted that each incident depended on communication between complainant and others, but that, in each case, management proceeded either without first-hand knowledge of what had transpired and/or in reliance on statements by the interpreter, who was not a disinterested party. The Commission also found that complainant's initial discipline tainted subsequent discipline. Finally, the Commission found that the agency's actions in denying complainant an outside interpreter were tantamount to a failure to reasonably accommodate her disability. Under the circumstances, the Commission stated, given the acrimonious relationship between complainant and the interpreter, the interpreter's apparent lack of ability, and the interpreter's personal involvement in most of the events at issue, the accommodation could hardly be said to be effective. The Commission noted that, although she was not entitled to accommodation of her choice, complainant was entitled to effective accommodation. The Commission found "incomprehensible" the agency's thinking that it was reasonable accommodation to compel complainant to use the interpreter's services or remain silent, particularly in the face of the agency's threat to terminate her if she did not use the interpreter's services during the disciplinary discussion that followed the argument. The Commission reversed the arbitrator and found both disability and reprisal discrimination. Atkins v. Social Security Administration, EEOC Appeal No. 02970004 (July 24, 2000).

Disability Discrimination was a Direct Cause of Complainant's Unemployment

Complainant, an Immigration Examiner, filed an EEO complaint on the basis of physical disability (e.g., weakness in left thumb). She claimed that she was discriminated against when she was denied a waiver of the police training portion of the basic training for her position. The police training included training in the use of firearms, defensive techniques, and arrest techniques. She also alleged that she resigned rather than yield to the agency's requirement that she convert to an excepted service "Schedule A" appointment as a condition to being exempted from the police training.

In its previous appellate decision, the Commission found that the training at issue was not related to the essential functions of complainant's position, and that the agency failed to show that waiving the police training requirement would be an undue hardship. The Commission ordered compensatory damages, and also ordered the agency to promptly insure that the training policies at issue in this case were in compliance with the Rehabilitation Act. However, finding that complainant's resignation was voluntary, the Commission did not order reinstatement and back pay for complainant.

Complainant filed this request to reconsider. The Commission found that, had the agency not demanded that complainant accept conversion to a Schedule A appointment or be terminated, complainant would not have resigned her career position. Moreover, even after the agency's Acting General Counsel advised the agency that the course of action the agency proposed was unlawful, and that the agency was obliged to accommodate complainant in her career appointment, the agency still did not make any attempt to reinstate complainant. The Commission stated that this evidence, which showed "remarkable bad-faith dealing on the part of the agency," established that the agency's discrimination was a direct cause of complainant's unemployment. The Commission modified the remedy in the previous decision by adding the order to reinstate complainant to the Immigration Examiner position, with back pay and benefits. Rosenthal v. Department of Justice, EEOC Request No. 05981166 (July 14, 2000).

Pattern of Discrimination Found in Agency's Personnel Practices

Discrimination was found based on perceived disability (stutter) and race (Black) against complainant, a temporary Electronics Mechanic, from 1986 until his termination in 1993. He had not been selected for supervisory and other positions. The Commission found that complainant was subjected to a pattern and practice of the agency's converting white, nondisabled employees to permanent status over a seven-year period during which time complainant was not afforded the same opportunity. The Commission further stated that a discriminatory motive existed throughout complainant's chain of command at the agency against complainant and other Black employees.

In addition, with regard to the agency's not selecting complainant for a higher-graded position, the Commission found that there was substantial evidence in the record to support the AJ's finding that the agency regarded complainant as an individual with communication difficulties that substantially limited him in the major life activity of speaking. In this regard, the Commission noted the comments of the selecting official that he was "bothered" by complainant's speech impediment and that one of the reasons complainant was not selected for the higher position was communication. It was also this official who the Commission noted had referred to Black employees as "boy." The Commission found that this official did not unequivocally deny these as well as other statements.

The Commission awarded complainant monetary relief, including $30,000 in nonpecuniary damages for emotional distress. In supporting its award, the Commission declared "that the present case does not solely deal with a nonselection for a position. Indeed, the case involves a series of nonselections which culminated in complainant's failure to convert to permanent status and his ultimate termination from his seven-year temporary employment with the agency." The Commission also provided other relief including ordering retroactive placement in a permanent Electronics Mechanic position. Flythe v. Department of the Army,EEOC Appeal No. 01972258 (April 11, 2000).

Agency Failed to Provide Reasonable Accommodation and Unreasonably Continued to Demand Medical Documentation for Known Chronic Condition to Support Sick Leave

Complainant, a Procurement Analyst, alleged disability discrimination (narcolepsy with cataplexy and vision loss) when he was denied a flextime schedule with late arrival, and was denied clerical assistance as a reasonable accommodation. Due to his condition, complainant could not meet an early arrival time. Complainant requested a later schedule, while maintaining his alternate work schedule. However, his supervisor refused and advised complainant he could have a later starting time or an alternate work schedule but not both. Complainant also complained that the agency required him to provide medical documentation whenever he used sick leave despite the agency's awareness that he had a chronic condition. Absent that documentation, complainant was required to take annual leave.

With regard to the issue of clerical assistance, complainant claimed that he had not been provided with clerical assistance to accommodate his vision problems of congenital estropia (muscle loss) in the left eye with significantly reduced vision caused by narcolepsy. This condition inhibited complainant's ability to see the handwritten changes his supervisors made to his documents. Complainant's supervisor agreed to have his own clerical assistant type and incorporate the changes of his supervisors. Complainant alleged, however, that the clerk refused to read or type for him and that his supervisor failed to intervene. Finally, complainant alleged that he was subjected to harassment when his supervisors and co-workers repeatedly made derogatory remarks about his condition. Complainant was granted disability retirement after he filed his EEO complaint.

The Commission found that the agency was not required to provide complainant with both a late arrival time and a flexitime schedule, declaring that complainant was entitled to "effective" reasonable accommodation and not necessarily one of his own choosing. In this regard, the Commission cited the EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act No. 915.002 (March 1, 1999 at p. 17). The Commission found, however, that the agency had failed to provide complainant with an effective accommodation for his reduced vision caused by his narcolepsy. Specifically, the Commission found that "the agency's provision of an oversized monitor was not enough of an accommodation, by itself, because it did not assist the complainant in reading the handwritten comments of his supervisors." The Commission noted "that the clerk charged with helping the complainant admitted she did not type for the complainant, except for envelopes."

The Commission also found for complainant on the medical documentation issue. Complainant had averred that, under the collective bargaining agreement, he was not required to provide medical documentation on a continuing basis when it was known that he suffered from a chronic condition. The Commission held that complainant should have been granted accrued leave as a reasonable accommodation. Finally, the Commission found for the agency in rejecting complainant's claim that derogatory statements pertaining to his disability rose to the level of a hostile work environment. While finding the statements to be inappropriate, the Commission found they were not sufficiently severe or pervasive and unreasonable interfered with his work performance. Irvin v. Department of Energy, EEOC Appeal No. 01991867 (September 8, 2000).

"Direct Threat" Disability Determination Requires Individualized Risk Assessment

Complainant, a direct patient care nurse at a VA medical facility since 1982, challenged the agency's removal of her in early 1995. Among the bases of alleged discrimination was physical disability (hearing loss, obesity, and hypertension). At the time of her hiring, complainant weighed 291 pounds and had dual hearing loss. Her hypertension was (purportedly) controlled through medication. The agency rated complainant at least "Satisfactory" throughout her tenure, which included a 1994 performance appraisal. Complainant wore hearing aids and requested that co-workers look at her when they speak, as a means of accommodation. Phones at her work station contained hearing amplified ear pieces.

In August 1994, complainant's supervisor informed the Associate Chief of the Nursing Service (RO-2) of the following concerns: (1) whether complainant was able to perform cardiopulmonary resuscitation (CPR); (2) staff members' fear that she could not respond to an emergency; and (3) her hearing impairment which, on occasion, led to misinterpretation resulting in the need for immediate conflict resolution. Complainant underwent a fitness for duty examination (FFDE) to evaluate her physical competency.

The findings of the FFDE led to the convening of a Physical Standards Board (PSB), comprising three physicians, to determine complainant's future in her position. The PSB concluded that complainant could remain in her position if she did the following: (1) displayed a willingness to reduce her weight to 291 pounds within six months to one year; (2) became certified in CPR within six months; and (3) saw the FFDE physician every three months. The Chief of Nursing Service objected to the PSB's recommendation, asserting that it did not address "the actual clinical concerns" of complainant's ability to function professionally as a nurse. The Chief raised safety concerns pertaining to complainant's ability to walk and hear, to respond quickly, and to her lack of CPR training. Consequently, the PSB reconvened and concluded that complainant was "physically incapable of performing the duties of her position without hazard to herself and/or others." The PSB head, a physician, expressed his belief that the Chief's memorandum was designed to pressure the PSB into reversing itself.

The agency issued a FAD finding no discrimination, which the Commission reversed on appeal. The Commission found that complainant was substantially limited in her ability to hear, even with the help of mitigating measures (hearing aids). The Commission also found that the agency regarded complainant as being substantially limited as to walking as a result of hypertension and obesity. The Commission found that complainant was able to perform the essential functions of her position when she was removed, noting her 1994 "Satisfactory" performance appraisal and her previous successful ratings for 12 years. The Commission rejected the agency's position that complainant was not qualified for her position because her disabilities caused her to be a safety risk. The Commission declared that "to exclude an individual on the basis of a possible future injury, the agency must show more than that an individual with a disability poses a slightly increased risk of harm."

In finding that the agency had discriminated against complainant based on disability, the Commission drew two main conclusions. First, the Commission found that the impetus for the FFDE was unsupported fears rather than actual facts. In this regard, the Commission noted that agency officials could not "identify a single instance when [complainant] did not respond appropriately in an emergency situation and/or placed a patient at risk." Second, and more troubling to the Commission, were the actions of the agency after the FFDE. The Commission noted, for example, the PSB head's testimony that he felt pressured to change his previous recommendation, as well as his additional statement that the PSB never discussed whether complainant's continued tenure constituted a risk. Therefore, the Commission concluded that complainant had met her burden of showing that she was a qualified person with a disability who was removed from her position because of her disability. Accordingly, the Commission ordered the agency to offer complainant reinstatement plus back pay with interest and outstanding benefits. With regard to the question of CPR training, the Commission directed the agency to afford complainant the same treatment as other nurses had been afforded who had not been certified, yet who were permitted to remain in their positions until they did obtain certification without being perceived as direct threats. Evey v. Department of Veterans Affairs, EEOC Appeal No. 01970918 (September 15, 2000).

Agencies Have Continuing Obligation to Provide Reasonable Accommodation Absent Undue Hardship

"The dispositive issue in this case," the Commission declared, "is whether the agency met its responsibility to provide complainant with reasonable accommodations to his disability in response to complainant's requests for permanent light duty." The AJ found, and the Commission agreed, that complainant's repeated requests for permanent light duty assignment were essentially ignored. The Postal Service instead placed complainant in an unpaid off-duty status. The Commission stated that the agency has the responsibility to provide absolute and continuing accommodation to complainant, until and unless doing so becomes an undue hardship. The Commission noted that the agency may have conducted the required individualized assessment of complainant's abilities and limitations when complainant was first placed in a temporary light duty position. However, it appears that the agency later ignored complainant's request for a permanent light duty assignment and the decision was made to send him home on an indefinite basis. The Commission also found no evidence to suggest that placing complainant on permanent light duty would have caused an undue hardship on the agency.

In its decision, the Commission pointed out that a factor in the AJ's determination was credible testimony that the agency official who handled complainant's light duty request made statements evidencing a discriminatory animus toward employees with disabilities during a light duty committee meeting. Testimony indicated that these statements included a comment that individuals with disabilities should be 'weeded out' prior to completing probation because after that they were 'hard to get rid of.' As part of the relief ordered, the Commission directed the agency to reinstate complainant, with back pay, to his former position, with reasonable accommodation. Williams v. United States Postal Service, EEOC Appeal No. 01973755 (September 11, 2000).

Credibility Factor Noted in Sexual Harassment Findings; Agency Investigation Inadequate

Complainant asserted that she had been subjected to sexual and/or disability-based (cerebral palsy) harassment by her first-level supervisor. In finding that complainant had been discriminated against based on sex and disability, the AJ found her testimony to be credible while finding the supervisor's testimony lacking in credibility. The AJ further concluded that the agency had failed to take immediate and appropriate action upon receiving complainant's sexual harassment complaint. The agency's final decision rejected the AJ's discrimination findings.

In reversing the agency's finding of no discrimination, the Commission decided that there was no significant evidence to contradict the AJ's credibility findings. "These credibility findings are particularly significant because the Commission recognizes that sexual harassment may be private and unacknowledged, with no eyewitnesses," stated the Commission.

Finally, the Commission also noted that an agency should take all steps necessary to prevent sexual harassment from occurring. The Commission stated that it was disturbed by the fact that the agency officials involved in this matter failed to take those steps. The Commission found that the investigation into complainant's allegations was wholly inadequate and far from unbiased, and as a result, the agency took none of the critical early steps which might have mitigated the harm to complainant. Accordingly, the Commission found appropriate the consideration of compensatory damages. The Commission also ordered the agency to provide training with regard to sexual harassment to all the managerial officials responsible for agency actions in this case. Bynum v. Department of Veterans Affairs, EEOC Appeal No. 01974628 (June 1, 2000).

Agency Fails to Sustain Affirmative Defense to Vicarious Liability for Sexual Harassment

In this case, the Commission set forth the elements necessary for a complainant to prevail in a claim of sexual harassment by a supervisor, and for an agency to successfully avoid liability. According to complainant, on her first day on the job, her supervisor "'eyed her up and down' and told her she was cute." Over the course of the next several months, complainant said, the supervisor made a number of sexually-oriented comments to her which she found offensive. She testified at hearing that the supervisor also made comments to her of an implicitly sexual nature. She testified, for example, that, when she was retrieving change from a front pants pocket, the supervisor approached her and offered to help her remove the change. The supervisor denied complainant's claims. However, several of her co-workers testified that the supervisor regularly made comments concerning his sex life. One witness testified that the supervisor, when he distributed schedules to female clerks, would put the schedules in the pockets of their shirts and remark "that it was the best 'feel' he had all day."

Complainant stated that she did not complain about the supervisor's behavior because the supervisor "was the boss . . . it is his word against yours . . . You don't want to make waves." Complainant said she discontinued wearing makeup and fixed her hair so he would leave her alone. However, complainant said an incident occurred while she was in the ladies' restroom that "pushed her over the edge," causing her to take action. The supervisor entered the restroom in search of the custodian. The co-worker yelled at the supervisor, asking what he was doing. The supervisor replied: "Oh cool! I always wondered what it was like in here." The supervisor subsequently was suspended for one week and was transferred. Complainant testified that, as a result of this incident, she could not work for several months and was diagnosed with Post Traumatic Stress Disorder.

On appeal, the Commission found overwhelming evidence in the record that the supervisor routinely made offensive, sexually-oriented comments in the workplace, and stated that "not only were a number of these comments directed at complainant, but it is clear that the comments were unwelcome to her." With regard to the restroom incident, the Commission stated that although it was not explicitly sexual in nature, when considered in the context of the supervisor's other actions, it was illustrative of his lack of respect for his female subordinates. With regard to complainant's statement that she did not consider filing a complaint prior to the restroom incident, the Commission did not construe this as an admission that she was not affected by the supervisor's prior behavior. The Commission found that her testimony supported a finding that it was a combination of the prior behavior and the restroom incident that, as complainant put it, "pushed her over the edge."

The Commission stated that an employer is vicariously liable for sexual harassment by an employee's immediate supervisor or by others who have authority over that employee. However, the Commission also noted that where the harassment does not result in a tangible employment action being taken against the employee, the employer may raise an affirmative defense to liability. The Commission stated that the agency can meet this defense, which is subject to proof by a preponderance of the evidence, by demonstrating: (a) that it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) the complainant unreasonably failed to take advantage of any preventive or corrective opportunities provided by the agency or to avoid harm otherwise. The Commission also pointed out that this defense is not available when the harassment results in a tangible employment action (e.g., discharge, demotion, or undesirable reassignment) being taken against the employee. The Commission cited its Enforcement Guidance: Vicarious Liability for Unlawful Harassment by Supervisors, EEOC Notice No. 915.002 (June 18, 1999), at p. 15.

To satisfy the elements of its affirmative defense, the Commission declared, an employer at a minimum must have an anti-harassment policy and complaint procedure that contains the following elements: (1) a clear explanation of what constitutes prohibited conduct; (2) assurances that employees who bring complaints of harassment or provide information related to such complaints will be protected against retaliation; (3) a clearly described complaint process that provides possible avenues of complaint; (4) assurance that the employer will protect the confidentiality of harassment complaints to the extent possible; (5) a complaint process that provides a prompt, thorough, and impartial investigation; and (6) assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

In the present case, the Commission found that the agency's affirmative defense failed. The Commission found it not apparent from the record that the agency had a policy in effect during the period in question that satisfied the aforementioned elements. The Commission noted, for example, that the supervisor had not provided his employees with a statement that workplace harassment would not be tolerated until after complainant's complaint had been filed in this matter. Therefore, the Commission found that the agency had failed to satisfy the elements of its affirmative defense and therefore was liable for the supervisor's harassment. As part of the relief ordered, the Commission directed the agency to determine whether complainant was entitled to compensatory damages; ensure that the supervisor does not work in the same unit as complainant; and reinstate any leave complainant used as a result of the harassment. The Commission also ordered the agency to take appropriate preventive steps to ensure that no employee is subjected to sexual harassment and to ensure that appropriate steps are taken immediately after management is notified of any such harassment. Viers v. United States Postal Service, EEOC Appeal No. 01975665 (October 14, 1999), RTR denied, EEOC Request No. 05A00193 (November 30, 2000).

Discriminatory Harassment Found; AJ's Order Regarding Discipline Modified

Complainant filed an EEO complaint claiming that the agency discriminated against him on the bases of race (Black), religion (Islam), and reprisal by allowing him to be subjected to harassment by a subordinate. A hearing was held before an EEOC AJ who found in favor of complainant and ordered certain relief. In its final order, the agency agreed with the AJ's decision and agreed to implement the relief ordered by the AJ, except for Element (2). It was from the following order of the AJ that the agency appealed to the Commission:

A. Issue a letter of reprimand to [the subordinate] admonishing him for engaging in unlawful racial and religious harassment directed to complainant; and

B. Require [the subordinate] to attend sensitivity training on racial and religious diversity as a condition of his continued employment.

On appeal, the Commission affirmed the agency's final order, but modified Element (2) so that the agency would be directed to consider taking disciplinary action against the subordinate. EEOC also ordered the agency to require the subordinate to attend sensitivity training, but would not require that attendance at that training be a condition of the subordinate's continued employment. The Commission noted that to do otherwise would be contrary to EEOC's own regulations set forth at 29 C.F.R. Section 1614.102(a)(6), which states that each agency shall take appropriate disciplinary action against employees who engage in discriminatory practices. The Commission further declared it well settled in both Commission precedent, as well as the implementation of the amendments to Part 1614 in 1999, that it could not discipline or order the discipline of employees directly. Instead, the Commission has the authority to order the agency to consider taking disciplinary action under appropriate circumstances. Accordingly, in the present case, EEOC ordered the agency, inter alia, to consider taking disciplinary action against the subordinate employee found to have discriminatorily harassed the complainant. The Commission further ordered the agency to report to EEOC what disciplinary action, if any, it took against the employee; or to set forth the agency's reasons for not imposing discipline. Mitchell v. Department of Veterans Affairs , EEOC Appeal No. 07A00016 (April 12, 2001).

Agency Liable Where Transfer was Based on Retaliatory Motive

Complainant alleged reprisal and disability discrimination after being issued a temporary transfer assignment. The transfer was issued less than five months after complainant filed two EEO complaints alleging harassment and reprisal. The Commission sustained her reprisal claim, after finding the agency's explanation to be "unworthy of belief." The agency's explanation for the transfer was that it was done in an attempt to resolve stress and a hostile work environment. But, observed the Commission, the agency failed to address the fact that the transfer was only temporary, and failed to show that it took affirmative measures to eradicate any undue stress or harassment before her return. Moreover, the transfer letter stated that complainant would be returned to her current position when her medical restrictions were lifted, rather than when any unfavorable conditions have been eradicated. For these reasons, the Commission found that the agency's explanation lacked credibility, and found that complainant proved that the agency's articulated reason for the temporary transfer was pretextual. Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).

Equal Pay Act and Title VII Violations Found in Wage and Nonselection Case

Complainant appealed from the final decision of the agency (FAD), which found she had not been discriminated against on the bases of sex (female) and race (Black) when: (1) she was hired in September 1996, at GS-11, Step 7, instead of at a higher step; and (2) she was not selected for the GS-12 position of Pharmacist Team Leader, Outpatient Pharmacy, on or about May 7, 1997. At the time this matter arose, complainant was employed by the agency (Department of Veterans Affairs, or "VA") at its Biloxi, Mississippi, facility, as a GS-11, Step 7, pharmacist.

In reversing the FAD, the Commission noted initially that the agency had neglected, without explanation, to address complainant's claim that the agency had violated the Equal Pay Act of 1963 (EPA). EEOC found that complainant received less pay than four White male pharmacists within her department (Pharmacy Services) who performed the same job as she (GS-11 Pharmacist) and that their job duties were substantially equal.EEOC also noted that the pharmacists were supervised by the same chain of supervisors and had the same job description. Further, the agency did not dispute complainant's assertions that she performed the same duties and had equal or greater responsibilities, due to her work on the evening shift, than the male pharmacists and had, in fact, trained some of them. Accordingly, EEOC found complainant had established a prima facie violation of the EPA.

The Commission also found that the agency had failed to meet its burden of proving that the difference in pay between complainant and the male comparatives resulted from a factor or factors other than sex. EEOC rejected the agency's explanation (although not directly addressing complainant's EPA claim) that two male pharmacists (Y) and (Z) had initially refused the agency's job offer and had wanted more money, showing that they either had been paid more in a current position or had a more lucrative job offer. The agency averred that the Professional Standards Board (PSB), which had determined complainant's salary, was not aware complainant had been paid more at her prior agency position in Michigan and that complainant had accepted the agency's offer in Biloxi. The Commission found that the PSB had information, when it decided her step, not only of complainant's previous grade and step, but also her previous salary, which was $11,000 more than the agency's offer.

The Commission noted that an EPA violation was also a violation of Title VII of the Civil Rights Act of 1964. Additionally, EEOC rendered an independent finding of intentional sex discrimination under Title VII. Further, the Commission found that the agency had discriminated against complainant on the basis of race under Title VII, finding pretextual the agency's explanation for the difference in salary offers.

With regard to the issue of complainant's nonselection, the Commission found that the Chief of Pharmacy (CP), and the Assistant Chief of Pharmacy (ACP) who had chaired the PSB, averred that the selectee (S1) had 27 years of experience to complainant's 10. However, EEOC found that the FAD's conclusion, that S1 was hired because he had more experience than complainant did not address the question of their respective qualifications, thus hindering complainant's ability to prove pretext. Nonetheless, the Commission found intentional discrimination noting its prior determination that the agency had permitted discriminatory animus to affect its treatment of complainant when ACP determined complainant's salary offer. In addition, EEOC found, from background evidence, that, in October 1996, ACP had denied complainant a promotion in favor of a White male (S2) "under suspicious circumstances," when ACP granted S2 an extension of time in which to apply for the promotion (Pharmacy ADP Coordinator).

As part of the relief granted, the Commission ordered the agency to offer complainant the position at issue or a substantially similar position with back pay, as well as back pay regarding her Title VII claims and an additional equal amount in liquidated damages for her EPA claim. EEOC also ordered the agency to consider complainant's claim for compensatory damages for her nonselection; provide EEO law training to CP and ACP; and ensure that the PSB conducts an equally thorough review of each applicant's information with regard to salary offers. Jones v. Department of Veterans Affairs, EEOC Appeal No. 01994717 (November 2, 2000), request to reconsider denied, EEOC Request No. 05A10136 (April 16, 2001).

Racial Discrimination Found in Duty Assignments

In this case, complainant, a GS-7 Respiratory Therapist (RT), asserted that the agency (the VA) discriminated against her on the basis of race (African-American), when she was not permitted to perform sleep studies, and was trained by a less qualified therapist from 1994 to September 1995, at the agency's Decatur, Georgia, facility. The gravamen of her complaint was that the Chief Therapist favored the comparative, the only RT on the night shift who was not African-American, by assigning only him sleep studies and informing only him about a sleep study training session. The Commission noted that at least five RTs had filed EEO complaints against the Chief and cited a decision in which it found racial discrimination when the agency denied that complainant the opportunity to conduct sleep studies.

In its FAD, in the instant case, the agency conceded that the comparative did the majority of sleep studies, but that other RTs also did sleep studies. The agency averred that, while the Chief Therapist needed to improve her supervisory skills, race was not a factor in the way she treated employees. On appeal, complainant contended that she was not assigned as many sleep studies as was the comparative who had less formal training than complainant. She (complainant) also provided a performance appraisal wherein she was rated "fully successful" in the area of oxygen delivery.

The Commission reversed the FAD, finding the agency's reasoning to be pretextual. EEOC found no evidence to support the agency's position that complainant made mistakes while conducting sleep studies. The Commission also found not credible the Chief Therapist's assertion that the comparative was the only RT who expressed an interest in performing sleep studies. EEOC rejected the agency's determination that the absence of direct evidence of discrimination supported a finding of no discrimination. The Commission noted that, in Reeves v. Sanderson Plumbing Products, Inc., the Supreme Court had found that evidence sufficient to discredit an employer's proffered nondiscriminatory reasons for its actions, combined with a complainant's prima facie case, may be sufficient to support a finding of discrimination. In this regard, the Commission further found that the Chief Therapist had belittled African-American RTs in front of other co-workers, and did not afford them the treatment she afforded the comparative.

As part of the remedies ordered, EEOC directed the agency to provide EEO law training to the Chief Therapist; ensure complainant had the opportunity to perform sleep studies; and immediately provide agency employees with equal opportunity in the assignment of duties, including sleep studies. Christian-Harper v. Department of Veterans Affairs, EEOC Appeal No. 01972786 (April 20, 2001).

Adverse Inference Drawn in Finding Age and Racial Discrimination in Failure to Upgrade

At the time this matter arose, complainant was a Personnel Assistant, GS-203-7, at the Hiawatha National Forest (HNF), Michigan, facility of the agency (Department of Agriculture). She filed an EEO complaint alleging discrimination on the bases of race (White), under Title VII, and age, under the Age Discrimination in Employment Act of 1967 (ADEA), in connection with five claims. The FAD found no discrimination as to any of those claims, and the Commission, on appeal, affirmed the FAD as to four of those claims. However, EEOC reversed the FAD as to the remaining claim, finding that the agency had discriminated against complainant on the bases of race and age when it denied her request for a position upgrade through a classification.

The Commission rejected the agency's assertion that complainant had failed to establish a prima facie case of discrimination, based on age and/or race, because there were no similarly-situated employees in the HNF facility who had their positions evaluated. EEOC reminded the agency that lack of similarly-situated employees does not preclude a complainant from raising an inference of discrimination. The Commission found, in the instant case, that a Position Classification Specialist (PCS), after reviewing complainant's position, found that complainant's position merited an increase to Grade 8. The PCS indicated that the key issue was the level of supervisory control exerted over the position because complainant seemed to be operating with a level of supervision akin to a GS-8 position. When management officials did not respond to PCS' requests for information, including the extent of supervisory control over complainant's position, he used available information to recommend that the position be classified as GS-8.

In addition, EEOC found that an inference of discrimination was raised when, contrary to the agency's claim, a chart listing the grade levels of GS-203 Personnel Assistants in the region; and a February 10, 1997 letter by an unidentified agency official to another regarding the agency's failure to cooperate with PCS concerning the inadequacy of the investigation into complainant's complaint; showed that there were at least two GS-203 Personnel Assistant GS-8s and one GS-9 in the region. The agency official who wrote the letter stated that the record lacked information concerning the GS-8 and GS-9 Personnel Assistants.

Accordingly the Commission drew an adverse inference against the agency, finding that the agency did not produce information about the GS-8 and GS-9 Personnel Assistants, despite being put on notice by one of its own officials, because such information, if produced, would have proven unfavorable to the agency, i.e., that those individuals were significantly younger and were of a different race than complainant's. EEOC rejected the agency's argument that a Regional Classification Specialist, upon re-examination of complainant's position, had found the position was correctly graded as a GS-7. The Commission found that the agency had offered neither analysis nor explanation for this determination. Therefore, the Commission found that the agency had discriminated against complainant based on race and age and ordered the agency, inter alia, to upgrade her position to the GS-8 level, retroactively. Makosky v. Department of Agriculture, EEOC Appeal No. 01976056 (August 23, 2001).

Mixed Motive Does Not Obviate Finding of Discrimination, But Limits Remedies Available

In this case, complainant, a City Carrier at the agency's North Las Vegas, Nevada, facility, asserted that the agency discriminated against her on a number of bases under Title VII, including reprisal, as well as age under the ADEA, in connection with 12 claims. Among the claims was the allegation that she was over-scrutinized and supervised (claim (1)). Subsequent to an investigation, complainant requested a hearing before an EEOC Administrative Judge (AJ). At the conclusion of the hearing, the AJ issued a recommended decision of no discrimination, finding, in pertinent part as to claim (1), that the District Manager of Sales and Services for the North Las Vegas Post Office (DM) sent an employee (S1, a supervisor) to the facility to monitor complainant starting on September 13, 1994. DM was responding to managers' reports that the poor performance of the facility was due, in part, to complainant's constantly filing grievances, requests for information, and EEO activity, which prevented them from focusing on the agency's mission. To ensure complainant would perform like any other carrier, DM sent someone to monitor and scrutinize her.

The AJ found that complainant's EEO activity was inextricably intertwined with her grievance activity and various investigations and, thus, it would be difficult to determine that her EEO activity was not part of what motivated DM. The AJ concluded that DM was motivated by retaliation, as well as the desire to encourage complainant to complete her route in a timely manner and prevent her from slowing down work at the station. Accordingly, the AJ concluded that DM had a mixed motive for assigning an employee to monitor complainant and that DM would have taken the same action in the absence of complainant's EEO activity. The FAD adopted the AJ's recommended decision and noted that the agency had met its burden of establishing that it would have taken the same actions in the absence of complainant's EEO activity. Complainant appealed from the FAD.

On appeal, the Commission affirmed the FAD, with the exception of the FAD's determination regarding claim (1). In reversing that portion of the FAD, EEOC cited past Commission guidance and precedent and declared that, where there is a finding of discriminatory motivation, further proof of a legitimate motive does not disprove the discriminatory motive. The Commission declared that the finding that DM was also motivated by nondiscriminatory concerns would affect the relief complainant was due, but did not lead to a finding of no discrimination. Therefore, EEOC concluded that complainant had established that S1's overscrutiny was partially motivated by discriminatory animus. Accordingly, the Commission determined that complainant was not entitled to personal relief, but might be entitled to declaratory relief, injunctive relief, attorney's fees and costs. As part of the relief ordered, EEOC directed the agency to conduct sensitivity and EEO law training for DM and S1. Hironaka v. United States Postal Service, EEOC Appeal No. 01976665 (March 27, 2001).

Age and Racial Discrimination Found in Nonselection Case

This matter involved an agency (Department of the Treasury) appeal from an EEOC AJ's finding that the agency's reasons for not selecting complainant for the position of Process Manager, GS-301-14 were a pretext for discrimination based on age and race (Black). Complainant, an employee of the United States Customs Service, Field Operations, Gulf Customs Management Center (GCMC), New Orleans, Louisiana, was permanently assigned to the position of Senior Process Specialist, GS-301-13. On January 3, 1997, her supervisor (B-1) was selected as New Orleans Port Director, a GS-15 position. Complainant replaced B-1 when she was detailed to his former position in an acting capacity (GS-301-14 Process Manager) from January 5, 1997, to May 11, 1997. On February 4, 1997, the agency issued a vacancy announcement and six candidates, including complainant, were referred for competitive selection. The other candidates, all of whom were White, ranged in age from 37 to 49 (complainant was 48).

The selecting official (A-2), who was White and 62, was Director of the GCMC. A-2 interviewed the candidates and spoke with four Port Directors, three of whom recommended complainant: B-1, B-2, and B-4. B-3 said he could work with complainant or C-1 (White, 37). A week later, B-1 changed his mind and recommended C-1. On May 2, 1997, A-2 selected C-1. A-2 wrote that C-1 had worked for him for years, would bring a fresh perspective to the position, and was able to analyze difficult situations and make objective recommendations. At the hearing, A-2 testified that his first choice was C-2 (Hispanic, 43), but C-2 rejected the position because the agency could not hire her husband. A-2 conceded that complainant had done a good job, despite difficult assignments; that her detail was "pretty heavy"; and that she had little time to "self start" projects. B-1 testified that he had changed his mind regarding his recommendation of complainant because, at a Port Director's meeting, he raised issues concerning the performance measures that the GCMC was required to develop. B-1 averred that complainant seemed indifferent while C-1 impressed him when he met with her because she took more initiative in managing her assigned responsibilities. However, A-2 testified that no one in the country knew much about performance measures at that time.

The AJ determined, after observing the demeanor of A-2 and B-1 as they testified, that they were not persuasive. The AJ decided that the reasons for selecting C-1 over complainant were "simply not credible" and found that complainant "had worked in the area of the vacancy, had acted informally in the position, and the agency had detailed her to the position for several months after the vacancy developed."

On appeal, the Commission rejected the agency's argument that complainant had failed to demonstrate that she was more clearly qualified than the selectee. In reversing the FAD, EEOC noted that, in a nonselection case, pretext could be shown in a number of ways and not merely by establishing that complainant's qualifications were observably superior to the selectee's. Citing the Supreme Court's decision in St. Mary's Honor Society v. Hicks, the Commission found no basis to set aside the AJ's decision, and ordered the agency, inter alia, to retroactively promote complainant. Shaw v. Department of the Treasury, EEOC Appeal No. 07A00014 (April 3, 2001).