U.S. Equal Employment Opportunity Commission
Volume XV, No. 1
Office of Federal Operations
Winter Quarter 2004
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
Editor: Arnold Rubin
Writers: Gerard Thomson, Arnold Rubin, Lauren Schwartzreich
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.
After-Acquired Evidence Indicating Complainant May Have Lacked Proper Credentials Impacts Remedy, Not Liability. The agency rejected the findings of an EEOC Administrative Judge (AJ) that it had discriminated against on the basis of age, when complainant was not selected as an Administrative Law Judge (ALJ). The agency contended that, after the hearing, it learned that complainant had been an inactive member of the Indiana Bar for 4 years. The agency argued that the Office of Personnel Management (OPM) would not have included complainant on the selection register, since he was not minimally qualified to be an ALJ. In response, complainant averred that he was duly licensed and authorized to practice law in Indiana at the time he began the process of getting on OPM's ALJ registry. Citing Supreme Court precedent and its own Enforcement Guidance on after-acquired evidence, EEOC said that such evidence does not defeat an employer's liability for violating the Age Discrimination in Employment Act (ADEA); instead, such evidence bears on the remedy. In remanding the issue for a hearing, the Commission held that complainant was still entitled to back pay from the date of his nonselection to the date the agency learned he was allegedly not qualified. Guido v. Social Security Administration, EEOC Appeal No. 07A10004 (May 29, 2003), request to reconsider (RTR) denied, EEOC Request No. 05A30976 (October 21, 2003).
EEOC Declines to Set Aside $300,000 Award in Face of Agency Untimely Appeal. Finding that the agency untimely filed its appeal from an AJ's award of $300,000 in non-pecuniary compensatory damages, the Commission stated that the agency was not permitted to challenge any aspect of the AJ's decision. Therefore, the Commission declared that it would make no determination as to the appropriateness of the AJ's finding of discrimination or of the amount awarded in compensatory damages. Gay v. Department of the Navy, EEOC Appeal No. 07A20089 (October 9, 2003).
Adjustment of the Lodestar. While noting that a finding of discrimination with regard to one out of four claims justified an award of attorney's fees, the Commission adjusted the lodestar, i.e., the number of hours reasonably expended multiplied by a reasonable hourly rate, to account for the unsuccessful claims, reducing the award by 20 percent. The Commission noted that the attorney focused his efforts on the successful claim, spending little time on the three unsuccessful claims. Conze v. Department of Homeland Security, EEOC Appeal No. 07A20077 (September 2, 2003).
Religion Found to be a BFOQ. The EEOC concurred with the decision of the Merit Systems Protection Board (MSPB) that complainant, an agency chaplain (Catholic) was not discriminated against on the basis of religion when he was separated from employment as part of a Reduction-in-Force (RIF). The Commission noted that the agency sustained its burden of demonstrating the necessity of a denominational hiring policy for chaplains. Petitioner agreed that the chaplain's role was a dual one and that the sacramental duties necessary to the position were not interchangeable. He did not dispute the agency's claim that the Protestant chaplain could meet the faith-specific needs of the majority of patients, whereas petitioner could not. EEOC found that, in this case, placing a non-Protestant into the chaplain position at the facility at issue would undermine the essence of the agency's business: providing the highest-quality health care to its patients, which includes meeting the spiritual needs of patients. The Commission noted that the agency could only retain one full-time chaplain for budgetary reasons and that non-Protestant patients were served by part-time/contract chaplains. Norton v. Department of Veterans Affairs, EEOC Petition No. 03A30013 (May 6, 2003).
Agency does not need to notify potential class members of the dismissal of a class complaint, or their right to file individual complaints. The Commission concurred with the AJ's decision not to certify a class complaint alleging that female Assistant U.S. Attorneys in the Major Crimes Section of the agency's U.S. Attorney's Office were assigned Magistrate Court duty and day duty, but male employees were not given similar assignments. The Commission further found that the agency had no duty to notify members of the class, named or not, that the class complaint had been dismissed and that they had the right to file individual complaints. The Commission stated that, to the extent the AJ relied upon its decision in Mole v. Department of the Air Force, EEOC Request No. 05910578 (September 25, 1991), the notice requirement in that case was not applicable, because Mole involved a class that had previously been certified, but was later "decertified." In this case, however, the class was never initially certified. Furthermore, the Commission abrogated later decisions to the extent that they improperly relied on Mole for the proposition that notice to "named class members" was required when class certification was denied. Davenport v. Department of Justice, Appeal No. 07A30082 (December 5, 2003).
The following summaries briefly discuss Commission findings of discrimination and remedies as applicable.
Disability Discrimination: Denial of Reasonable Accommodation; Agency Defenses of Direct Threat and Undue Hardship Rejected; Medical Confidentiality Violated. The Commission found complainant to be a qualified individual with a disability (valvular disease), in that she could perform the essential functions of her position, keying, with or without reasonable accommodation. EEOC found that complainant needed the agency to excuse her from certain non-essential functions i.e., prepping and load sweeping, which conflicted with her medical restrictions, in order to perform the duties of the position. The agency refused to grant the accommodation. In finding that the agency violated the Rehabilitation Act, the Commission rejected the agency's proffered defenses of direct threat and undue hardship. The EEOC found that the agency failed to meet its burden of proving a significant risk of substantial harm, and conducting an individualized assessment to show that complainant's keying 6-8 hours a day, as she had done in the past, would expose her to carpal tunnel syndrome. The agency also failed to show undue hardship on its operations by allowing complainant to perform her duties without doing prepping or load sweeping. The evidence showed that employees had been previously excused from various duties, including prepping. Finally, the EEOC found that the agency violated the Rehabilitation Act when it improperly disseminated her medical diagnosis and work restrictions. By way of relief, EEOC directed the agency to offer complainant the position, with reasonable accommodation; back pay; consider disciplining the employee responsible for the discrimination; and remanded for a hearing the issues of attorney's fees and compensatory damages. Forde v. United States Postal Service, EEOC Appeal No. 01A12670 (October 9, 2003).
Hearing Impaired Employee Denied Reasonable Accommodation. The Commission found that the agency failed to provide complainant with equal access to information communicated in the workplace. The agency also failed to comply with Commission precedent that requires agencies to provide interpreters for discussions on workplace issues. In addition, the agency failed to provide complainant with either an interpreter or a closed- caption training video. The Commission ordered the agency to provide complainant with a qualified sign-language interpreter, when required for workplace matters, and remanded the issues of attorney's fees and compensatory damages, finding that the agency had failed to make a good faith effort to reasonably accommodate her. Wait v. Social Security Administration, EEOC Appeal No. 01A11629 (October 2, 2003).
Disability-Based Harassment by Co-Workers. The Commission found that agency management failed to take effective action to stop 3 co-workers from subjecting complainant to harassment based on her disability (multiple sclerosis). EEOC noted that complainant was subjected to a constant pattern of rude remarks, shunning, and a lack of cooperation with regard to her work. Further, management either used the harassing behavior to pressure complainant to work overtime, or at least acquiesced in it so as not to lower the co-workers' productivity. The Commission ordered the agency to consider disciplining the employees involved in the harassment and engage in aggressive monitoring to ensure that the harassment ceased. EEOC remanded the issue of compensatory damages. Staib v. Social Security Administration, EEOC Appeal No. 01A22011 (September 26, 2003).
Disability Discrimination: Excessive Requests for Medical Documentation. The Commission found that the agency improperly made repeated requests for medical documentation from complainant. EEOC noted that the agency's first request for documentation was job-related and consistent with business necessity, given that complainant experienced a seizure at work, lost consciousness, and fell, cutting his head. The Commission, however, found that the agency's repeated requests for documentation after it had received sufficient information from complainant's neurologist exceeded the permissible scope of inquiry. The Commission ordered the agency to reinstate complainant, who had not been permitted to return to work after his injury, with backpay and benefits, and pay complainant compensatory damages, attorney's fees and costs. Vindiola v. USPS, EEOC Appeal No. 07A20046 (September 16, 2003).
Race and Age Discrimination in Nonselection. The EEOC found that complainant was discriminated against on the bases of race (African-American) and age (56) when she was not selected for the position of Computer Clerk. The agency's selecting officials had provided subjective reasons for the challenged selection, such as "ability to learn new things" and "enthusiasm." An EEOC AJ found that the selecting officials lacked credibility, and that the complainant had experience performing many of the duties of the position and was a more qualified candidate. The EEOC ordered the agency to retroactively place complainant in the position and provide back pay and other benefits, as well as $10,000 in compensatory damages. Williams v. Department of Veterans Affairs, EEOC Appeal No. 07A20076 (September 22, 2003). See also: Jones v. United States Postal Service, EEOC Appeal No. 07A20004 (September 22, 2003) (failure to provide light duty assignment based on race; $15,000 awarded in compensatory damages); Franco v. Department of Veterans Affairs, EEOC Appeal No. 07A30012 (September 24, 2003) (nonselection for Computer Specialist position based on national origin; award of $10,000 in compensatory damages).
Race Discrimination. The EEOC found that complainant was terminated from her casual appointment because of her race (African- American). The Commission noted that the agency granted a white comparative's request for a change in duty while denying complainant's request, and found that the agency failed to articulate a legitimate, nondiscriminatory reason for the disparity. EEOC affirmed a damages award of $5,000. Toombs v. United States Postal Service, EEOC Appeal No. 07A20133 (September 29, 2003).
Race, Age, and Reprisal Discrimination. Complainant was subjected to discrimination based on race (African-American) and age (57), and in reprisal for prior EEO activity when she was not selected for a Medical Management Specialist position and a supervisor made staffing changes for employees complainant supervised, and failed to send complainant to EEO supervisory training. The EEOC affirmed an award of compensatory damages and attorney's fees for its violation of Title VII of the Civil Rights Act of 1964, and ordered the agency to retroactively promote complainant with back pay and benefits. Frazier v. Department of Veterans Affairs, EEOC Appeal No. 07A30080 (September 30, 2003).
Retaliation Discrimination. Complainants were subjected to retaliation for engaging in protected EEO activity when the agency delayed their pay. The Commission found that no other employees were shown to have experienced the number of leave-related pay errors to which complainants were subjected. By way of relief, the Commission ordered the agency to provide complainants with interest compounded from the dates of the agency's unlawful conduct through the date of payment to complainants of such interest; as well as attorney's fees and costs. Barbagallo and Yost v. United States Postal Service, EEOC Appeal Nos. 07A20012 and 07A20013 (October 2, 2003). See also Huie v. Federal Communications Commission, EEOC Appeal No. 01A22474 (September 29, 2003) (nonselection for collateral duty EEO Counselor because of pending EEO complaints; appointment ordered); and Vasquez v. Department of Homeland Security, EEOC Appeal No. 07A20097 (September 4, 2003) (supervisor's rescheduling of complainant's meeting with EEO Counselor could have potentially chilling effect on complainant's EEO activity; EEOC ordered training for supervisor, $1,200 in pecuniary and nonpecuniary compensatory damages, plus attorney's fees and costs).
Sex/Gender Discrimination. Complainant asserted that she was subjected to gender discrimination when the agency failed to grant her a two-year renewal of her overseas tour. The Commission found that the articulated reasons given by the agency for the action were pretextual. It noted that management officials were vague about the reasons for denying complainant's request for renewal. Further, the record showed that the one specific reason cited by the agency for its action, an untimely declaration of intent, did not automatically bar the renewal of an employee's tour. EEOC stated that a comparative employee's tour was renewed after he changed his declaration of intent. The Commission ordered the agency to remove any documentation pertaining to the denial from complainant's personnel record, and to conduct a supplemental investigation regarding the issue of compensatory damages. Harms v. Department of Justice, EEOC Appeal No. 01A24567 (September 30, 2003).
Sex-Based Harassment by Co-Worker. The Commission found that complainant was subjected to hostile environment, gender-based harassment by a co-worker who treated her in a rude and threatening manner, and affirmed an award of $5,000 in compensatory damages. Liu v. Social Security Administration, EEOC Appeal No. 07A20052 (September 16, 2003).
Sexual Harassment by Co-Workers. Two of complainant's co-workers used the internet to view web sites of an explicit nature in her presence and continued to do so after complainant brought the matter to his supervisor's attention. While affirming a compensatory damages award of $7,500, the Commission noted that, because complainant was not available to return to work, he was not entitled to front pay. Walker v. Department of the Navy, EEOC Appeal No. 07A20111 (September 30, 2003). See Zorrero v. Department of Homeland Security, EEOC Appeal No. 01A21401 (September 4, 2003) (agency failed to take prompt action upon being alerted to the conduct of a co-worker when nude photographs were circulated in the workplace for a period of 4 years; matter remanded for compensatory damages).
For Claims to be Dismissed as Identical, Elements Must be Identical. In order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. Although the claims in two complaints had the same date of alleged discrimination, the Commission found that the claims at issue expressed distinct incidents and thus were not identical and the later claim should not have been dismissed. Battle v. Department of Transportation, EEOC Request No. 05A20049 (September 26, 2003). See Coleman v. Department of Transportation, EEOC Appeal No. 01A14028 (May 29, 2003) (prior complaints filed by others challenging a new pay system, and which the Commission dismissed as a generalized grievance for failing to state a claim, were not identical to complainant's claim that he was given a smaller pay increase than was given employees at lower step levels and which identified a specific injury with respect to the terms and conditions of his employment).
The following decisions set forth examples of cases where the Commission has examined whether claims are cognizable under the statutes it enforces.
Failure to State a Claim
Smith v. Department of Veterans Affairs, EEOC Appeal No. 01A32477 (July 24, 2003) (actions by union officer against union official fail to show an agency action adversely affecting complainant's terms, conditions, or privileges of employment).
Blake v. Department of the Treasury, EEOC Appeal No. 01A24372 (August 22, 2003) (anticipated preselection does not constitute sufficiently extreme circumstance to obviate complainant's obligation to apply for the position; nor can complainant convert a nonselection claim into a violation of the Equal Pay Act simply in order to render her aggrieved).
Mulondo v. Department of Defense, EEOC Appeal No. 01A33348 (September 30, 2003) (complaint filed by foreign citizen employed by the agency in Germany is not viable; EEOC's regulations do not apply to employees of the Federal government who are not U.S. citizens and who are outside the limits of the United States).Stating a Claim
Pedigo v. Department of the Army, EEOC Appeal No. 01A33119 (August 22, 2003) (retirement does not bar claim where the incidents complained of preceded the retirement).
The Commission granted complainants' Petitions for Enforcement of its prior decisions as set forth below.
Cvijanovich v. Department of Veterans Affairs, EEOC Petition Nos. 04A30036 & 04A30037 September 4, 2003) (complainant claimed entitlement to a retroactive promotion, and EEOC found that the agency did not contest complainant's assertion that others selected under the vacancy announcement at issue were promoted within one year. Further, the Commission noted that complainant was entitled to receive the sametraining as other selectees for the position.)
Kretschmar v. Department of the Navy, EEOC Petition No. 04A20032 (September 4, 2003). (agency's offer of a temporary position was not in compliance with EEOC's order to reinstate complainant to her former position. The Commission further found no evidence to support the agency's assertion that complainant failed to mitigate her damages, noting, instead, that the record showed complainant took reasonable efforts to obtain comparable work, but was unable to do so).
In the decisions below, the Commission noted what constituted protected EEO activities, with regard to claims of retaliation.
Murname v. Department of the Treasury, EEOC Appeal No. 07A20090 (May 30, 2003) (complainant not selected for promotion in retaliation for protected EEO activity: counseling a co-worker as to a claim of sexual harassment).
Reed v. Department of Transportation, EEOC Appeal No. 01A05085 (May 20, 2003) (testimony before a subcommittee of Congress, naming agency management as engaging in sexual harassment or reprisal for participating in the EEO process, is protected activity).
Denying Annual Leave for Good Friday Observance Violated Title VII. The Commission found that the agency failed to show undue hardship in denying complainant reasonable accommodation of her religion. Manalo v. Department of the Navy, EEOC Appeal No. 01A14800 (May 23, 2003), RTR denied, EEOC Request No. 05A30945 (August 8, 2003).
Settlement Agreement Void for Lack of Consideration. Settlement agreement which provided the complainant with only assurances that the agency would enforce its safety policies "within the rules," and treat him with dignity and respect is void for lack of consideration. These provisions provided nothing to the complainant to which he was not already entitled. Further, a reference to a past grievance settlement removing a letter of warning did not constitute a legal detriment to the agency such as to constitute consideration. McGautha v. USPS, EEOC Appeal No. 01A33022 (August 28, 2003).
One Provision Void, But Not Entire Agreement. A provision of a settlement agreement in which management acknowledged that duties and hours of employees would be rotated, was void for lack of consideration, as complainant was already entitled to such through the collective bargaining agreement. The Commission noted, however, that the settlement agreement was not invalid, given that other consideration was exchanged. Cogdell v. USPS, EEOC Appeal No. 01A23693 (September 10, 2003).
Settlement Agreement Void for Vagueness. Provisions in a settlement agreement requiring the agency to "settle issues by informal communications," and to respond to formal issues within 48 hours were too vague to be enforced. Thus, the settlement agreement was void for lack of consideration, given that the remaining agency obligation identified in the agreement, that is, that there would be no retaliation against complainant, provided nothing more than that to which complainant was already entitled. Scott v. United States Postal Service, EEOC Appeal No. 01A33751 (October 6, 2003). See Gorzkowski v. United States Postal Service, EEOC Appeal No. 01A34100 (October 9, 2003) (Settlement agreement which provided that "the issue of tardiness" and all regulations would be applied fairly and equally to all employees, void for lack of consideration: agency incurred no legal detriment, and complainant did not receive any benefit to which she was not already entitled as a matter of law).
Settlement Agreement-Substantial Compliance Found. The Commission found that the agency substantially complied with the terms of a settlement agreement requiring that a specific individual attend violence-in-the-workplace training by requiring the employee to view a one-hour training film. EEOC noted that the agreement did not specify the form or length of the training. Further, the Commission stated that while the training was delayed for several weeks, and complainant was not notified of the completion of the training as specified in the agreement, the failure to satisfy the specified time frame did not preclude a finding of substantial compliance when all required actions had been completed and there was no evidence of bad faith. Goodson v. United States Postal Service, EEOC Appeal No. 01A24402 (September 3, 2003), RTR denied, EEOC Request No. 05A40021 (October 28, 2003).
Settlement Agreements Must Be in Writing. A settlement agreement, which was read into the record and included in a hearing transcript following a notation by the AJ that the complaints had been settled, is valid. The Commission noted that the terms of the agreement were simple, clear, and easily ascertainable, and were agreed to by both parties. Ullmayer v. Department of Defense, EEOC Appeal No. 01A31406 (September 8, 2003). Cf. Rembert v. Department of Veterans Affairs, EEOC Appeal No. 01A32881 (September 9, 2003). (Oral settlement agreement, the terms of which were not set forth in a hearing transcript, was invalid.)
Settlement Agreements and Age Discrimination. In order to constitute a valid waiver of an age claim under the ADEA, as set forth in the Older Workers' Benefits Protection Act (OWBPA), certain conditions must be satisfied. In the present case, the Commission remanded the matter for an investigation into whether complainant was given a "reasonable" period of time in which to consider the agreement. Banzon v. United States Postal Service, EEOC Appeal No. 01A32703 (July 3, 2003).
Reasonable Accommodation Denials. While each reasonable accommodation denial restarts the time period during which an aggrieved person must initiate EEO counseling, contact must be made within 45 days of the date of the denial. Porter v. United States Postal Service, EEOC Appeal Nos. 01994911 and 01A10406 (September 2, 2003).
Tolling of Time in Which to File Complaint Justified by Complainant's Medical Condition. Complainant's psychiatrist's letter indicating that complainant was being treated by her physician for post-traumatic stress disorder (PTSD), major depression, and anxiety in general, was sufficient to justify tolling the applicable time limitations. Schmidt v. United States Postal Service, EEOC Appeal No. 01A31127 (June 16, 2003).
Active Military Duty Period is Excluded From Time Computation. In finding complainant's EEO contact timely, the Commission noted that only 25 days had passed from the time complainant returned from active duty to the time he initiated EEO counseling. Ramirez, Jr. v. Department of Homeland Security, EEOC Appeal No. 01A32303 (August 15, 2003). Untimely EEO Contact: Doctrine of Laches. EEOC found that laches precludes a claim where complainant initiated EEO counseling nearly 8 years after one alleged incident, and nearly 2 years after another. Calhoun v. Department of Transportation, EEOC Appeal No. 01A30732 (July 31, 2003).
Pursuant to EEOC Regulation 29 C.F.R 1614101(b), no person shall be subject to retaliation for opposing any practice made unlawful by Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Equal Pay Act, or the Rehabilitation Act, or for participating in any stage of administrative or judicial proceedings under those statutes. The statutory retaliation clauses prohibit any adverse treatment that is based on a retaliatory motive, and is reasonably likely to deter the complainant or others from engaging in protected activity. Such adverse treatment includes threats and harassment in or out of the workplace. Petty slights and trivial annoyances are not actionable, as they are not likely to deter protected activity. More significant retaliatory treatment, however, can be challenged, regardless of the level of the harm.
The anti-reprisal provision of Title VII, from which the Commission's regulations were promulgated, protects those employees who participate in the EEO process, as well as those who oppose discriminatory employment practices. The Courts have interpreted section 704(a) of Title VII to provide broad protection to those who oppose such practices, reasoning that the enforcement of Title VII depends on the willingness of employees to challenge unlawful employment practices or policies. The Commission has also recognized an agency's continuing duty to promote the full realization of equal employment opportunity in its policies and practices which extends to every aspect of agency personnel policy and practice in the employment, advancement, and treatment of employees.
Under Commission policy, claimed retaliatory actions which can be challenged are not restricted to those which affect a term, condition, or privilege of employment. Instead, a complainant is protected from any discrimination which is based on a retaliatory motive, and is reasonably likely to deter protected EEO activity. The adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Specifically, the Commission has found that claims that an individual was considered a problem employee, was disruptive, and received memoranda questioning his willingness to do his job and insinuating that he was breaking regulations concerning compensatory time within six months of filing an EEO complaint stated a claim of reprisal and discriminatory harassment sufficient to warrant an investigation of the matter. The Commission has recently held that a claim involving a letter of counseling, when considered with a previous complaint filed by the individual against the same management official, stated a claim of retaliatory harassment.
In Garcia v. Department of the Treasury, the complainant alleged that, after filing an EEO complaint against her supervisor, the supervisor told her that she would never receive an Outstanding rating because she had filed the complaint, continually reminded her that management had not forgotten the complaint, informed her that management would never see her with "good eyes," and said that she should be willing to pay for filing the complaint. The Commission found that such statements were direct evidence of retaliation, as they were reasonably likely to deter protected activity. Specifically, the Commission stated that, rather than encouraging the realization of equal employment opportunity in the workforce, the supervisor's statements could have had a potentially chilling effect on the ultimate tool of enforcement, the filing of an EEO complaint.
In the absence of direct evidence of retaliation, an individual may establish a prima facie case of reprisal by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination. Specifically, in a reprisal claim, and in accordance with the burdens set forth in McDonnell Douglas, a complainant may establish a prima facie case of reprisal by showing that: (1) he or she engaged in protected activity; (2) the agency was aware of the protected activity; (3) subsequently, he or she was subjected to adverse treatment by the agency; and (4) a nexus exists between the protected activity and the adverse treatment. EEOC Regulation 29 C.F.R. . 1614.101(b) protects those individuals who participate in any stage of the administrative or judicial process, or who oppose any practice made unlawful under the employment discrimination statutes. In Trezvant v. Department of Transportation, the Commission found, however, that the complainant failed to establish a prima facie case, because he did not show that he engaged in such activity. The Commission noted that complainant was the local president of the National Black Coalition for Federal Aviation Employees and Chairman of a local EEO committee which was responsible for observing certain ethnic holidays. Nevertheless, the complainant did not participate in the EEO counseling or complaint process, and did not represent or counsel others who filed complaints, or serve as a witness in any EEO proceeding. Further, complainant's first and second level supervisors stated that they were unaware of complainant's duties as Chairman of the EEO committee. The Commission found no evidence that, while in the positions cited, complainant opposed any practice made unlawful under the employment discrimination statutes, or participated in the EEO process.
The agency officials responsible for the action must also be aware of the prior EEO activity. In Davis v. General Services Administration, for example, the evidence showed that complainant raised concerns about age-related questions which were asked during an interview. The complainant, however, did not do so until after the selection was finalized, and, thus, he failed to establish a prima facie case. The Commission has further noted that the mere assertion that it was common knowledge that an individual had engaged in the EEO process was not sufficient to show that agency officials had actual knowledge of prior protected activity.
Finally, a nexus must exist between the protected activity and the adverse treatment cited. In addressing the issue of nexus, the Commission will often examine the amount of time between the two in order to determine whether the adverse treatment followed the protected activity within such a period of time and in such a manner that retaliatory motive can be inferred. In Roppuld v. Small Business Administration, the Commission found that complainant's removal a mere three months after his initiating contact with an EEO Counselor was sufficient to establish a nexus between the two events. Further, a complainant's nonselection less than one year after he initiated an informal EEO complaint raised an inference that the action was based upon retaliation. Nevertheless, a seven-year interval between the complainant's participation in protected EEO activity and the alleged discriminatory action was too long to support a finding that the two were causally linked.
In Johnson v. Department of Justice, the Commission found that complainant was subjected to reprisal discrimination when he was not selected for promotion to several higher-level positions. The Commission noted that agency officials were aware that complainant consulted an EEO officer as early as September 1996, and that complainant advised two management officials, in May 1998, that he was filing another complaint. One of the supervisors then told complainant that he had received a promotion, and attempted to persuade complainant to drop his EEO complaint. The Commission also noted that complainant had been recommended for promotion by the Career Board, but the recommendation was not honored after his EEO allegations became known to agency management officials.
In Cvijanovich v. Department of Veterans Affairs, complainant alleged that he was subjected to reprisal when he was not selected for a Veterans Claims Examiner position, and harassed based on his protected activity. The Commission found that complainant established a prima facie case by showing that several of the incidents occurred on or about the time he filed his prior EEO complaint, and that management officials were aware of complainant's protected activity. The Commission noted that witness testimony demonstrated that the supervisor's explanations for issuing complainant a memorandum citing lack of production, criticizing complaint's work, and observing and questioning complainant's sending of e-mail were not credible. Instead, the evidence demonstrated that the actions, which were likely to deter complainant and others from engaging in protected activity, were based upon reprisal.
In Ramsey v. United States Postal Service, complainant raised various allegations concerning the processing of his request for leave under the FMLA. The Commission, after noting complainant's extensive history of filing EEO complaints, of which the agency was aware, found that the agency failed to explain why it imposed more stringent requirements for FMLA leave on complainant than it did other employees who made requests for such leave. The Commission rejected the agency's assertion that the actions were not sufficiently severe to be actionable, stating that adverse actions need not qualify as ultimate employment actions or materially affect the terms and conditions of employment to constitute unlawful retaliation.
In Sylvain v. Department of the Treasury, complainant asserted that she was subjected to reprisal and harassment when she was given a negative mid-year performance evaluation, not assigned to the Problem Resolution Program, and monitored in duties, attendance, use of the telephone, and use of the bathroom. The Commission noted that the adverse treatment began shortly after the conclusion of a prior EEO complaint, and continued for a period of nine months. Further, the agency stipulated that its managers were aware of complaint's protected activity. The Commission stated that witness testimony confirmed that the actions of the supervisors were motivated by retaliation. Specifically, one witness noted that a supervisor confided in her about her knowledge of complainant's EEO activity, and asked her to review complainant's work for errors. The Commission noted that the testimony of two additional witnesses showed that the actions of management were designed to intimidate and deter complainant and others from engaging in the EEO process.
In Porter v. Department of the Navy, the Commission found that the agency discriminated against the complainant in reprisal for prior EEO activity with regard to his performance evaluation. The Commission noted that the fact that the agency subsequently upgraded the evaluation to "Fully Successful" did not preclude a finding that the original negative evaluation had the serious effect of likely deterring complainant or others from engaging in protected EEO activity. The Commission further stated that testimony from a co-worker and customers failed to corroborate management's articulated reason for the negative evaluation, and the Commission questioned the supervisor's decision to unilaterally institute a new performance plan solely for complainant shortly after he filed EEO complaints.
In Keller v. United States Postal Service, the Commission found that complainant's request for reasonable accommodation in the form of additional floor mats constituted protected EEO activity. The Commission noted that complainant thus established a prima facie case of discrimination with regard to the agency's action to remove her which occurred two days after her request was made. While the Commission acknowledged that the agency articulated a legitimate reason for complainant's removal, that is, the supervisor's statement that she left the door to the facility unlocked, the Commission noted that complainant denied the allegation and the supervisor failed to initiate any investigation into the incident or contact the police or postal inspectors. The Commission stated that, instead, the supervisor seized the opportunity to remove complainant from employment in reprisal for her prior protected activity.
In Smith v. United States Postal Service, complainant applied to be rehired by the agency. During an interview, complainant was asked whether he had filed an EEO complaint. When complainant responded in the affirmative, the interviewer told him that he would not be rehired, and terminated the interview. The Commission found that the record did not support the agency's assertion that it did not rehire complainant because he had been terminated for cause. Specifically, the recommending official stated that she was unaware of such a policy, and complainant's former supervisor had recommended that complainant be rehired.
In Reed v. Department of Transportation, complainant asserted, among other things, that a manager threatened to file a civil action against him. The Commission noted that complainant engaged in protected activity when he testified before Congress about allegations of sexual harassment and reprisal at his facility. The manager, who had been named by complainant during his testimony, then threatened to file suit. The Commission found that the threat, made one week after complainant's testimony, was reasonably likely to deter complainant or others from engaging in protected activity. Specifically, the Commission stated that, if true, the acts would have placed an undue and potentially chilling burden on the exercise of complainant's EEO rights, that is, the need to weigh the risk of incurring the cost of defending against a slander action against the desirability of obtaining a remedy for discrimination. Finally, the Commission noted that it was unnecessary for complainant to demonstrate that he was actually deterred from filing a complaint.
In Laurant v. Department of the Navy, although the Commission did not find that complainant was subjected to reprisal discrimination, it concluded that the agency violated Title VII when a supervisor asked complainant to drop her EEO complaint. Citing 29 C.F.R. . 1614.101(b) and Binseel v. Department of the Army, the Commission noted that the supervisor's comments violated Title VII and Commission regulations by interfering with complainant's right to pursue remedies for violations of EEO rules and regulations, and were intended to have a chilling effect on complainant's exercise of her rights.
These recent cases demonstrate the application of a broad construction of the anti-retaliation provisions. The employee need not show that he or she was subjected to an "ultimate employment action" which affected a term, condition, or privilege of employment. Instead, the Commission has found discrimination in those cases in which the conduct was found to reasonably deter an employee from engaging in protected activity.
When addressing the appropriate amount of compensatory damages to award a victim of employment discrimination, one factor to consider is the amount awarded in similar cases. In order to provide our readers with some recent cases to serve this purpose, we have compiled brief summaries of recent EEOC administrative decisions awarding compensatory damages. Unless otherwise noted, the amounts indicated in the summaries are for non-pecuniary compensatory damages, to compensate the victims of discrimination for harm such as emotional distress. The decisions are listed according to the size of the award.
The agency failed to provide complainant with reasonable accommodation and constructively discharged him. The Commission noted that it was not bound by the MSPB's finding that complainant's retirement was voluntary. EEOC found that the agency acted in bad faith when it did not inform complainant of the restructuring of his position. The Commission awarded complainant $100,000 in compensatory damages, finding from the medical evidence that complainant experienced a "severe emotional injury" due to the discrimination. The Commission found that he continued to experience feelings of worthlessness and low self-esteem for a period of 5 years. It also awarded $26,320 in future pecuniary damages, for continuing medical treatment. Holland v. Social Security Administration, EEOC Appeal No. 01A01372 (0ctober 2, 2003)
The Commission found that the agency had discriminated against complainant because of his race (African-American) when it did not permit him to compete for a position for which he was qualified. The Commission noted that the complainant was well-adjusted and productive prior to his nonselection, but lost interest in life after the discrimination. It awarded him $95,000, finding that he suffered a loss of self esteem, depression, grief, anguish, embarrassment, anger, stress, weight loss, sleeplessness, withdrawal from friends, co-workers and family and a general loss of enjoyment of life. Truell v. Department of the Army, EEOC Appeal No. 07A30056 (September 3, 2003).
Complainant was subjected to race (African-American) discrimination and in reprisal for prior EEO activity when he was denied training and a promotion, and was removed from an acting supervisor program. He suffered from stress, anger and frustration for a period of 6 years, resulting in his seeking medical assistance for his anxiety, and adversely impacting his relationship with his family and friends, depression, loss of morale, and withdrawal from his family. He was awarded $75,000 for this emotional distress. Grigsby v. United States Postal Service, EEOC Appeal No. 07A20103 (September 24, 2003).
The agency failed to provide complainant with reasonable accommodation and ultimately terminated him from a temporary file clerk position. Complainant subsequently lost custody of his two daughters, became homeless, and was hospitalized. He was awarded $75,000 in compensatory damages. Quick v. Department of Veterans Affairs, EEOC Appeal No. 01A13884 (September 4, 2003), RTR denied, EEOC Request No. 05A40040 (November 4, 2003).
After finding that complainant had been subjected to discrimination on the basis of his disability, the Commission considered his entitlement to compensatory damages. Complainant's testimony, as well as that of his wife and pastor, showed that he experienced humiliation, embarrassment, and rejection, and that the feelings continued for a period of two years, as a result of his termination. Complainant went from being happy, outgoing, energetic and optimistic to being sad, bitter, depressed, and withdrawn. Hicks v. USPS, EEOC Appeal No. 07A10020 (September 26, 2003).
Complainant was denied reasonable accommodation and subsequently terminated. The record showed that complainant began to experience depression and related symptoms prior to the discrimination. Nevertheless, the Commission found that the discriminatory actions aggravated her pre-existing condition. Complainant's psychiatrist indicated that, following her termination, complainant exhibited feelings of humiliation and shame, worry, nervousness, and anxiety. She was awarded $60,000 in nonpecuniary compensatory damages. In addition, the Commission noted that complainant was entitled to reimbursement for the cost of medical services attributable to the discrimination. Levy v. Department of Veterans Affairs, EEOC Appeal No. 01A01561 (May 12, 2003).
Complainant was subjected to race (African-American) discrimination, within a racially-hostile environment, when he was placed on administrative leave, transferred to a facility where he had previously worked as a supervisor, and demoted. In affirming the AJ's award of $55,000, the Commission considered complainant's testimony that he suffered anxiety, stress, isolation, relationship strain, and humiliation due to the agency's actions. He presented evidence that he had been treated by both his physician and a psychologist for a period of several months for work-related stress. Chuney v. United States Postal Service, EEOC Appeal No. 07A10056 (October 6, 2003).
The Commission affirmed the award of $45,000 in compensatory damages made pursuant to a settlement agreement entered into by the parties. It noted that, while complainant was not entitled to damages for anxiety and depression which occurred prior to the alleged discrimination, her condition was aggravated by the action at issue, and she continued to suffer additional harm for approximately 3 years. Further, a reduction in claimed medical expenses by one-half was appropriate, given complainant's pre-existing condition. Charles-Shanon v. Department of Agriculture, EEOC Appeal Nos. 01A24037 & 01A30514 (September 25, 2003).
The Commission awarded $35,000.00 for emotional harm suffered as a result of the agency's failure to reasonably accommodate complainant's disability. The Commission noted that complainant, a Postal Clerk, experienced humiliation, intimidation, embarrassment, and depression when she was assigned to work in a guard shack for 18 months. Observing that complainant had not provided medical evidence in support of her claim for depression, the Commission stated that such evidence is not mandatory, but a lack thereof may affect the amount of damages awarded. Banks v. USPS, EEOC Appeal No. 07A20037 (September 29, 2003).
As a result of retaliatory harassment and a lowered proficiency report, complainant experienced increased anxiety and depression, stomach distress, chest palpitations, elevated blood pressure, and interference with social and family relationships. She was awarded $30,000 in nonpecuniary compensatory damages. Shah v. Department of Veterans Affairs, EEOC Appeal No. 07A30040 (September 30, 2003).
Complainant, her husband and two co-workers testified that, after the agency failed to promote her, she became distant, sad, demoralized, frustrated, anxious, and angry, suffered a loss of self esteem, and withdrew from family and friends for a period of four years. The Commission determined that she was entitled to a damages award of $30,000. Morales v. Department of Veterans Affairs, EEOC Appeal No. 01A23996 (September 24, 2003).
The Commission awarded $25,000 in damages for emotional harm due to complainant's discriminatory nonselection for several positions. EEOC found that the effects of the discrimination did not end when complainant was transferred eight months after the discriminatory actions, stating that complainant continued to work with the officials involved in the discrimination, and continued to experience the emotional impact thereof. The Commission stated, however, that complainant's claim for reimbursement resulting from real estate losses was speculative, and that complainant failed to show a nexus between the sick leave he took and the discrimination. Padilla v. Department of Housing & Urban Development, EEOC Appeal No. 01A23791 (September 30, 2003).
In its award of $25,000 in compensatory damages for emotional harm resulting from a five-day suspension, the Commission noted that, while complainant suffered stress, mental anguish, bad feelings, and embarrassment, a portion of her stress and mental anguish was due to domestic issues which were not compensable. Further, none of complainant's medical records justified a higher award of damages. Price v. Department of Justice, EEOC Appeal No. 07A20104 (September 24, 2003).
The Commission affirmed the award of $20,000 in damages in connection with a claim of sexual harassment, including repeated sexual advances and comments, which continued for a period of 10 months. Complainant indicated that an agency manager grabbed and kissed her, as well as exposed himself. Complainant experienced constant headaches, stress, and other physical and mental symptoms for which she sought medical attention. Curry v. USPS, EEOC Appeal No. 01A22291 (September 25, 2003).
The EEOC found that the agency suspended complainant two times in retaliation for his prior EEO activity. The Commission initially noted that complainant could not be compensated for harm sustained prior to the discrimination. It found, however, that complainant's statement, as well as statements from his psychologist, daughter, and companion demonstrated that complainant had difficulty concentrating, experienced reduced self-confidence, was emotionally vulnerable and fatigued, was bankrupt, had physical symptoms of increased stress, and appeared to be estranged from his family. In explaining its award of $20,000, the Commission noted that complainant's depression had resolved to a moderate level. Velarde v. USPS, EEOC Appeal No. 01A22780 (September 30, 2003).
Complainant was subjected to hostile environment harassment and retaliation. She was subjected to one incident of inappropriate touching and then required to work under the responsible individual after she reported the act. Complainant's psychotherapist provided documentary and testimonial evidence that established that complainant suffered from sadness, stress, and tearfulness. Complainant was diagnosed with dysthymia and generalized anxiety disorder as a result of the sexual harassment. The EEOC awarded her $12,500 for emotional distress due to the unlawful harassment. McKinney v. USPS, EEO Appeal No. 07A00049 (May 2, 2003).
The Commission awarded complainant $12,000 in nonpecuniary damages resulting from his nonselection in retaliation for prior EEO activity. It noted complainant's statements that he experienced such symptoms as hair loss, weight gain, anxiety, and a general loss of enjoyment of life. With regard to pecuniary damages, the Commission found that complainant was not entitled to reimbursement for money paid in state taxes, commuting costs, or costs associated with the sale of his house. The Commission did find that complainant was entitled to be compensated for $900 in storage fees because he demonstrated a causal nexus between his decision to move from a house into an apartment as a result of the stress he suffered due to the discrimination. Specifically, the unrebutted testimony of complainant and his wife demonstrated that the stress of the discrimination took such a toll on complainant's health that the responsibilities of maintaining a home became too much. The Commission affirmed the agency's award of 25 percent of complainant's claimed medical expenses, noting that factors other than the retaliation were also causes of complainant's medical treatment. The Commission noted that the record failed to support an award of future pecuniary damages for loss of reputation or nonselection for an additional position. Steenson v. Department of Agriculture, EEOC Appeal No. 01A13535 (September 4, 2003).
The Commission found that complainant was subjected to race (African-American) discrimination, and that she experienced both emotional and physical distress for a period of approximately six months. It noted that complainant acknowledged that she did not seek medical attention due to the discrimination. Complainant testified, however, that she was very upset following the discrimination, and experienced stress, vomiting, and trouble eating and sleeping. Complainant's testimony was corroborated by one of her co-workers. The Commission noted that complainant was not entitled to pecuniary damages, as she failed to provide medical bills or other evidence of any expenses for medical care or services. Daniels v. United States Postal Service, EEOC Appeal No. 07A30028 (September 3, 2003).
The Commission awarded complainant $7,000 in nonpecuniary compensatory damages due to disability discrimination and reprisal for prior EEO activity. Complainant experienced severe pain in his head, neck and shoulders, and his statements were confirmed by those of his physician. Murphy v. United States Postal Service, EEOC Appeal No. 07A20016 (September 5, 2003).
The agency failed to accommodate complainant for nearly one year and retaliated against her by assigning her night work. Complainant, who experienced Carpal Tunnel syndrome and sight problems, asserted that management would not allow her to work according to her limitations. After awarding complainant $5,000 for emotional distress, the Commission rejected complainant's claim for additional monetary damages alleged to have resulted from the loss of value of real estate and increased health insurance premiums. The Commission stated that complainant did not exercise reasonable diligence when she purchased a vacation villa at a time when she had no income, and the evidence did not show that complainant received other than fair market value at the time the property was sold. The Commission further noted that there was insufficient evidence concerning complainant's out-of-pocket expenses to support an award of damages for health insurance premiums. Eudy v. United States Postal Service, EEOC Appeal No. 07A10060 (September 3, 2003).
The EEOC found unlawful reprisal when complainant's pay was reduced for a period of eight months after she requested reasonable accommodation. Complainant stated that she suffered humiliation, anxiety, stress, and depression as a result of the discrimination. She sought assistance from the Employee Assistance Program Counselor, who diagnosed her with Adjustment Disorder. The Commission noted that the record contained medical documentation showing that she sought psychological care. The Commission awarded her $5,000 in nonpecuniary damages. Mar v. United States Postal Service, EEOC Appeal No. 01A24879 (September 24, 2003).
Complainant was terminated after only a few months when an agency physician found him unfit for his position due to a history of chronic low back pain and evidence of degenerative joint disease. The Commission noted that while complainant acknowledged that he did not consult a physician or experience any physical manifestations of his stress, his own statement, and that of his wife, showed that he experienced stress, marital strain, and financial difficulties following his termination. Complainant stated that he was unemployed for three months, had to borrow money from relatives, obtain personal loans, and experienced marital strain for approximately one month. Complainant acknowledged that he experienced little stress after being reinstated to his position approximately 16 months later. In awarding $3,500 for the distress resulting from the discrimination, the Commission noted that complainant was not entitled to pecuniary damages, as he failed to provide evidence detailing his out of pocket expenses. Young v. Department of Veterans Affairs, EEOC Appeal No. 01A24503 (September 15, 2003).
Complaint was subjected to a hostile work environment because of her sex over a period of several months. She suffered emotional distress, which resulted in difficulty sleeping and going to work, as well as headaches when she saw the responsible management official. The EEOC awarded her $3,500 in nonpecuniary compensatory damages. Linder v. United States Postal Service, EEOC Appeal No. 01A24191 (September 24, 2003).
As a result of the agency's denial and delay of his request for an extension of his overseas tour due to his prior EEO activity, complainant stated that he suffered a variety of symptoms, including depression, fatigue, skin disorders, sleeplessness, and loss of enjoyment of life. The record also contained a statement from complainant's wife, but was devoid of any statements from his physician or evidence that he sought medical treatment. The Commission indicated that, while complainant established some connection between the emotional harm suffered and the discriminatory actions, he also described harm he believed stemmed from other incidents for which no discrimination was found. The Commission awarded complainant $3,000 for emotional distress, noting that he failed to provide any documentation to support his claim for pecuniary damages. Myers v. Department of the Army, EEOC Appeal No. 01A21575 (September 24, 2003).
The agency denied complainant's request for religious accommodation. Complainant stated that she suffered from frustration, stress, and marital difficulties, and experienced stomach upset, but did not submit other objective evidence, such as statements from family and friends, detailing the effects of the discrimination. Further, while complainant stated that she saw a counselor and was prescribed medication for anxiety and depression, the notes from her physician did not reveal that complainant attributed her medical problems to the discrimination. Baum v. Social Security Administration, EEOC Appeal No. 01A24091 (September 24, 2003).
The agency failed to post a vacancy announcement, based on race. The Commission agreed with the agency's decision to award complainant $1,000 in nonpecuniary damages. Citing prior Commission case law, EEOC noted that the agency is only responsible for those damages which are shown to be caused by the agency's specific discriminatory conduct. The Commission noted that most of the evidence submitted concerned earlier events for which discrimination was not found, and for which complainant was not entitled to damages. In addition, complainant failed to show that her son's asthma and weight gain were attributable to the discriminatory conduct. Murray v. Social Security Administration, EEOC Appeal No. 01A13180 (September 4, 2003).
Complainant was subjected to a hostile work environment when his supervisor made comments of a sexual nature on several occasions and touched him one time, causing him to suffer embarrassment and damage to his self esteem and image. In awarding complainant $500 for emotional distress, the Commission observed that the record showed complainant suffered for a relatively short period and showed little manifestation of stress related to the hostile work environment. Walter v. USPS, EEOC Appeal No. 07A30003 (May 2, 2003).
1. EEOC Compliance Manual, Section 8 (Retaliation), No. 915.003, at 8-14 through 8-16 (May 20, 1998) (Compliance Manual).
2. See, Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997).
3. See Leonard v. Department of the Army, EEOC Appeal No. 01994132 (November 5, 1999) (citing Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1006 n.18 (5th Cir. 1969)).
4. Crespo v. United States Postal Service, EEOC Request No. 05920842 (September 17, 1993).
5. Compliance Manual, at 8-15.
6. Lindsey v. United States Postal Service, EEOC Request No. 05980410 (November 4, 1999).
7. Carroll v. Department of the Army, EEOC Request No. 05970939 (June 17, 1997).
8. Jacoff v. Department of Homeland Security, EEOC Appeal No. 01A20666 (September 3, 2003).
9. EEOC Appeal No. 07A10040 (January 13, 2003), request for reconsideration denied, EEOC Request No. 05A30453 (May 23, 2003).
10. Shapiro v. Social Security Administration, EEOC Request No. 05960403 (December 6, 1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
11. Hochstadt v. Worcester Foundation for Experimental Biology, 425 F.Supp. 318, 324 (D.Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976); Coffman v. Department of Veterans Affairs, EEOC Request No. 05960473 (November 20, 1997); Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340 (September 25, 2000).
12. EEOC Appeal No. 01A23444 (September 3, 2003).
13. EEOC Appeal No. 01996316 (September 7, 2001).
14. Qatsha v. Department of the Navy, EEOC Appeal No. 01A14668 (December 4, 2002); Rauseo v. United States Postal Service EEOC Request No. 05940975 (July 13, 1995).
15. Devereux v. United States Postal Service, EEOC Request No. 05960869 (April 24, 1997).
16. EEOC Appeal No. 07A20141 (August 6, 2003).
17. Smithson v.Social Security Administration, EEOC Appeal No. 01A03598 (August 23, 2001), request for reconsideration denied, EEOC Request No. 05A30466 (March 19, 2003).
18. Turner v. Department of Defense, EEOC Appeal No. 01A21018 (May 29, 2003), request for reconsideration denied, EEOC Request No. 05A30923 (August 14, 2003).
19. EEOC Appeal Nos. 01992631 & 01A03315 (September 11, 2002), request for reconsideration denied, EEOC Request Nos. 05A30094 & 05A30095 (April 21, 2003).
20. EEOC Appeal Nos. 01A13904 & 01A23550 (January 9, 2003).
21. EEOC Appeal No. 07A10080 (July 18, 2003).
22. EEOC Appeal No. 01A14546 (January 9, 2003), request for reconsideration denied, EEOC Request No. 05A30452 (May 23, 2003).
23. EEOC Appeal No. 07A20080 (April 24, 2003), request for reconsideration denied, EEOC Request No. 05A30794 (July 14, 2003).
24. EEOC Appeal No. 01A03119 (April 25, 2003).
25. EEOC Appeal No. 01A01538 (January 9, 2003).
26. EEOC Appeal No. 01A05085 (May 20, 2003).
27. EEOC Appeal No. 01A04697 (February 20, 2003).
28. EEOC Request No. 05970584 (October 8, 1998).