U.S. Equal Employment Opportunity Commission
Volume XVII, No.2
Office of Federal Operations
Spring Quarter 2006
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 Special Services Staff
Editor: Arnold Rubin
Writers: Robyn Dupont, Arnold Rubin, Gerard Thomson, James Meiburge
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.
Fee Award Increased. The Commission affirmed the agency’s denying some of the attorney’s fees and costs for inadequate descriptions of the work performed, failure to show that complainant was a prevailing party, or lack of a supporting affidavit noting the legal experience and customary hourly rate for a second associate attorney. It increased the attorney’s fees for work on the appeal of a compensatory damages award the agency had denied as premature but was now resolved. McGraw v. Department of Veterans Affairs, EEOC Appeal No. 01A53107 (January 12, 2006).
Complainant Entitled to Attorney’s Fees in Noncompliance Matter. The Commission awarded attorney’s fees and costs for an appeal from an agency’s failure to comply with AJ-ordered relief, because the agency’s noncompliance made complainant’s appeal necessary and reasonably foreseeable. Hairston v. Department of the Air Force, EEOC Appeal No. 01A54926 (January 4, 2006).
Fee Award Modified. The Commission, following a remand to an AJ for a hearing on attorney’s fees, found the AJ improperly reduced the award by 40% across-the-board because the attorney representing complainant on two complaints only prevailed on one. However, it did exclude fees from a dismissed reprisal claim that was separately itemized. The modified award included attorney’s fees and travel expenses, expert witness fees, postage, copying, and parking for the attorney during the hearing. Rucker v. United States Postal Service, EEOC Appeal No. 01A45275 (December 15, 2005), request to reconsider denied, EEOC Request No. 05A60388 (February 22, 2006).
(See also ”Class Actions,” in this issue. Ed. Note.)
No Collateral Attack on District Court Judge’s Order Found. The Commission reversed and remanded for hearing an AJ’s and agency’s dismissal of a complaint alleging disparate treatment as to a retroactive promotion given to a co-plaintiff, but not to complainant, following a U.S. District Court finding in another case. The Commission found that the District Court’s orders were silent with regard to the agency’s actions beyond the effective date of promotion for either employee, so complainant’s case was not a collateral attack on the District Court’s judgment. The Commission determined that even though the agency combined the court-ordered promotion with the agency’s own actions on promoting complainant and the co-plaintiff, the agency’s actions were not an extension of the DCJ’s ordered relief or exempt from EEOC review. Estate of Felder v. Department of Agriculture, EEOC Appeal No. 01A55230 (January 31, 2006), request to reconsider denied, EEOC Request No. 05A60489 (March 16, 2006).
(See also “Timeliness,” in this issue. Ed. Note.)
Conditional Certification Granted. The Commission affirmed the AJ’s finding that a class agent had satisfied the requirements of numerosity, commonality, and typicality for class certification regarding a claim that the agency violated the Rehabilitation Act when it asked applicants seeking disabled veteran’s preference to provide medical documentation beyond that needed to verify the preference. The Commission agreed with the AJ that the class agent did not satisfy adequacy of representation because he did not demonstrate experience in handling class complaints, professional competence, or adequacy of resources. But, the Commission remanded the matter for conditional certification of the class for a reasonable time for the class agent to obtain adequate representation. The Commission also required the AJ assigned to define the class as to temporal scope of the policy and geographic scope of the class. Hill, et al., v. United States Postal Service, EEOC Appeal No. 01A45646 (April 18, 2006).
Certification Denied for Lack of Numerosity. The Commission affirmed the AJ’s denying class certification for lack of numerosity. The class agent sought to represent tens of thousands of class members, but she identified only five individuals who would be similarly situated to her. All five class members had worked at one agency location, so their individual complaints could be easily consolidated. The Commission directed the agency to process any individual complaints held in abeyance pending the outcome of the class certification decision. Robinson v. Department of the Treasury, EEOC Appeal No. 01A44877 (April 20, 2006), request to reconsider denied, EEOC Request No. 05A60723 (June 2, 2006). Cf. Malone v. United States Postal Office, EEOC Appeal No. 01A50081 (April 20, 2006) (class complaint fails for lack of numerosity; matter remanded for processing as individual complaint; agency ordered to notify the six members of the class identified by name).
Certification Denied for Lack of Commonality. The Commission affirmed the AJ’s denying class certification for lack of commonality and typicality. Complainant raised 10 issues (basis: African-American), including a Notice of Removal and two suspensions. The Commission found the class complaint to be merely an “across the board” claim of discrimination that failed to identify any discriminatory policy or centralized decision-making authority or practice, which discriminated against the proposed class as a whole. As for typicality, the Commission found the record absent information showing which incidents affected both complainant and the other identified class members. Finally, the Commission dismissed complainant’s individual complaint because these were the same issues raised in a civil action. Complainant was also not eligible to serve as a class agent. Matthews-Frazier, et al. v. United States Postal Service, EEOC Appeal No. 01A44789 (April 20, 2006).
Time Limitation for Complainant to Contact an EEO Counselor Suspended by Filing of Class Complaint. The Commission decided time limits for EEO counselor contact are suspended where the agency fails to properly inform complainant about proper appeal rights, following the unsuccessful appeal of an AJ’s denying certification for a class complaint. The class case alleged age discrimination regarding a job-abolishment and privatization plan. After the Commission affirmed the denial, the agency EEO briefed affected employees and collected informal individualcomplaints. Complainant and her co-workers then filed individual discrimination complaints against the agency. The agency dismissed the complaints for untimely EEO counselor contact, failure to state a claim and collaterally attacking the privatization process. Complainant’s co-workers simultaneously filed appeals with both MSPB and EEOC. The EEOC reversed the agency’s dismissal of 43 of the complaints, in Kalinich v. Department of the Army, EEOC Appeal No. 01A51825 (August 25, 2005). Complainant appealed only to the MSPB, which decided it lacked jurisdiction, and then appealed to the EEOC. The Commission found it reasonable that complainant would have been unsure of her options in this matter. The Commission also found that the time limit for complainant to contact an EEO Counselor was suspended by the filing of the class complaint. As in the Kalinich decision, supra, the Commission found that the 45-day time limitation for initiating EEO contact was triggered on the day after EEOC finally denied the class certification request, so that any EEO Counselor contact on or before the 45th day, such as complainant’s, was timely. The Commission noted that while the agency had no legal duty to notify employees about the final adjudication of the class claim, the agency chose to do so. Wheeler v. Department of the Army, EEOC Appeal No. 01A55676 (February 7, 2006).
(See also “Findings of Discrimination,” and “Remedies,” in this issue. Ed Note.)
Commission Increases Award of Compensatory Damages. Following a remand and hearing on damages, the Commission increased an AJ’s award from $4,000 to $8,000, based on testimony and record evidence illustrating the nature, severity, and duration of complainant’s symptoms, the need for treatment, and considering Commission precedent. The Commission found that the agency, aware of complainant’s physical limitations, caused him physical pain and emotional distress by requiring him to work outside his physical restrictions. Complainant’s “heightened sensitivity” could not be viewed as a “pre-existing condition” to diminish the compensatory damage award. Complainant credibly testified as to the nature and severity of his emotional distress, including anger and crying; withdrawal from his family; and absence from church. Rucker v. United States Postal Service, EEOC Appeal No. 01A45275 (December 15, 2005), request to reconsider denied, EEOC Request No. 05A60388 (February 22, 2006).
The Commission Sets Criteria for Telephonic Hearings. In a series of three decisions issued the same day, the Commission decided when an AJ may hold a telephone hearing. In Louthen v. United States Postal Service, EEOC Appeal No. 01A44521 (May 17, 2006), the Commission held that because special weight is given to an AJ’s demeanor-based credibility determinations, an AJ should not conduct a hearing by telephone unless exigent circumstances exist or the parties jointly request a telephonic hearing under certain guidelines. Three examples of exigent circumstances were: 1) where parties or witnesses were at such distances that travel was not practical, such as where a civilian witness has been deployed on military reserve duty; 2) where witnesses are not or are no longer Federal employees and cannot be compelled to testify, but may be willing to testify by telephone; or 3) where a witness or party with a disability cannot physically appear at a hearing. Without exigent circumstances, the parties may jointly request a telephonic hearing in writing. The request should note the parties were informed of the limitations of telephone testimony, including that the AJ’s credibility determinations based on observation of a witness are entitled to greater deference by EEOC on appeal. Also, the AJ must be satisfied that it is unlikely that the credibility of any witness testifying telephonically will be at issue. Neither the AJ nor the agency may advertise the availability of telephone hearings.
In reviewing a decision following a telephonic hearing the Commission will consider whether exigent circumstances existed or if a party objected to telephone testimony; whether the credibility of any telephone witness was at issue; and how important was the telephone testimony. If these guidelines are not followed, the Commission will determine whether the error was harmless.
In Louthen, the Commission found the AJ abused her discretion by conducting a telephone hearing where one party objected, where the AJ gave no explanation of exigent circumstances, and where the AJ was in the same city as the parties. Complainant was entitled to a full in-person re-hearing before a newly-assigned AJ. In other cases, re-hearing may be limited to certain witnesses
In the second decision, Sotomayor v. Department of the Army, EEOC Appeal No. 01A43440 (May 17, 2006), the Commission held that because witness credibility was not at issue and no party objected, the AJ’s holding a telephone hearing was harmless error.
In the third decision, Rand v. Department of the Treasury, EEOC Appeal No. 01A52116 (May 17, 2006), the Commission remanded the matter for an in-person hearing because there were no exigent circumstances, the AJ’s credibility determinations affected the result, and complainant had objected.
Improper Termination Based on Age. The Commission affirmed an AJ’s finding of age discrimination where the agency terminated complainant following an altercation but did not discipline the co-worker also involved. The AJ found the co-worker had a history of acting improperly toward complainant, including addressing complainant as “old man” and “grandpa,” using obscenities when referring to him and attempting to run over complainant with a forklift. Complainant’s supervisor was aware of these incidents but told complainant he would have to learn to “live with” such incidents and did not conduct an investigation. Then, the co-worker with fists clenched physically confronted complainant, called him a name and came within inches of complainant’s face. Complainant pushed the co-worker away, causing him to trip and fall, but the co-worker immediately got up, again got in complainant’s face and further shoving occurred. The agency terminated complainant after this incident. The AJ noted the Deputy Director who terminated complainant had attended management meetings where the need to reduce the age of the workforce at the facility was discussed. The AJ concluded that the Deputy Director appeared to have taken literally the agency’s desire to reduce the workforce’s age and that firing complainant was a convenient manner in which to achieve attrition while retaining the younger employee. Jennings v. Department of the Navy, EEOC Appeal No. 07A50078 (December 29, 2005).
Denial of Reasonable Accommodation Leads to Constructive Discharge. The Commission found disability (Type I insulin-dependent diabetes) discrimination when the agency caused her disability retirement by denying complainant’s request for a reasonable accommodation to remain on the Tour II day shift so she could avoid serious complications associated with her diabetes. The Commission determined that complainant’s diabetes rendered her substantially limited in the major life activity of eating, due to her significant dietary restrictions/strict eating schedule, need to frequently check her blood glucose levels (including twice at night), and need to frequently take emergency-type measures to correct her blood sugar levels, such as supplementing her insulin pump use with insulin injections and eating carbohydrate snacks. Even with this regimen, complainant’s diabetes was poorly controlled, with her experiencing episodes of both hyperglycemia and hypoglycemia, including losing consciousness, and occasionally needing emergency hospital treatment.
The Commission rejected the agency’s defense of undue hardship, i.e., that under U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), allowing complainant to remain on the day shift violated seniority rights under the Collective Bargaining Agreement (CBA). Rather, the Commission found complainant’s staying on Tour II violated no seniority rights because all distribution clerks at her pay location were excessed from Tour II to Tour I (night shift) as part of a national program, so that no one would be “bumped,” and because complainant’s Permanent Modified Job was not a bid position, no other employee could retreat to it. Also, even if seniority rights were affected, the Commission found that the agency’s own CBA required it to find work for disabled and injured employees, so it was “reasonable” for the agency to allow complainant to remain on the day shift, falling under the “special circumstances” exception provided by Barnett.
Finally, the Commission found that complainant’s disability retirement was tantamount to a constructive discharge in that she was compelled to either take disability retirement or accept reassignment to the night shift, thus placing herself at high risk for serious, potentially life-threatening diabetic complications. The Commission modified the award of non-pecuniary compensatory damages to $20,000.00 as being consistent with awards in similar cases. Jambora v. United States Postal Service, EEOC Appeal No. 07A40128 (May 16, 2006).
Disability Discrimination in Performance Appraisal. Reversing an agency’s FAD, the Commission found the agency discriminated against complainant based on disability (Juvenile Rheumatoid Arthritis) when it lowered her performance appraisal two steps from “Very Good” to “Fully Satisfactory” and denied her a bonus. The Commission affirmed the FAD’s finding, based on undisputed evidence, that complainant was a qualified individual with a disability. However, the Commission found the agency’s reason for lowering complainant’s rating (a previous supervisor’s ratings were too high) was pretext for disability discrimination. Undisputed evidence showed that complainant’s managers at a meeting brainstormed negative actions to take against complainant. The Commission found not credible the agency’s explanation that the meeting was held to discuss staffing shortages caused by complainant’s part-time status, but did find it suspicious that management would meet on how to “deal” with complainant, since her inability to work full-time duties due to her disability caused the alleged “staffing shortage.” The Commission found that the words “stoking the pot,” to compel complainant “to take vol. disability,” showed that her disability was central to the meeting’s discussions. The Commission found the RMO’s comment to complainant, “When are you going to get better?”, in the context of the performance appraisal, constituted additional evidence of pretext. The Commission noted that complainant was the only employee in this particular division whose rating dropped by two steps and who, as a result, did not receive a bonus. Green v. National Science Foundation, EEOC Appeal No. 01A33221 (February 16, 2006), request to reconsider denied, EEOC Request No. 05A60566 (April 13, 2006).
Agency Fails to Make Good Faith Effort to Reasonably Accommodate Complainant’s Disability. The Commission reversed an agency’s FAD and found that allowing complainant, a person with a disability (a heel problem called plantar fasciitis), to use a stool while working as a reasonable accommodation would not create an undue hardship. Complainant had requested a reasonable accommodation to sit while working, presenting letters describing his medical problem. The Commission found undisputed that complainant was qualified for the position, and found complainant had sufficiently documented her need. It found that complainant was a disabled individual within the meaning of the Rehabilitation Act because complainant’s ability to stand was substantially limited, compared to the average individual in the general population, and his problem was long-term. It also found complainant had established a nexus between his disabling condition and the requested accommodation. The agency’s policy not to allow persons in complaint’s job to use stools, to preclude injury, did not, in and of itself, establish undue hardship, since the agency’s policy specifically allowed for exceptions to provide certain reasonable accommodations. Moreover, one manager stated that using a specific register would not cause a safety hazard and another stated the use of a stool at the register would not have any impact on the facility’s operation. Glaude v. Department of Defense (Defense Commissary Agency), EEOC Appeal No. 01A33351 (March 16, 2006), request to reconsider denied, EEOC Request No. 05A60650 (May 17, 2006).
Agency Liable for Denial of Interpreter for Hearing-Impaired Employee.
The Commission affirmed a FAD upholding an agency’s seven-day suspension of a hearing-impaired complainant for his inappropriate behavior, precipitated by management officials without a sign language interpreter discussing his work practices with him. The record contained no evidence that similarly situated persons without a disability were treated differently, and the Rehabilitation Act does not require employers to excuse a violation of a uniformly applied, job-related conduct rule, consistent with business necessity, However, the Commission did reverse the agency’s finding that it was unaware of complainant’s disability, because the agency sporadically provided complainant with interpreters, mainly during job safety discussions, so that complainant was entitled to a reasonable accommodation. The agency, as part of the interactive process needed to discuss with complainant more precisely when he would need an interpreter, or other accommodation, even though complainant made no formal request. The Commission also found that the size of the agency’s annual budget precluded it from claiming undue hardship for providing complainant an interpreter. The Commission remanded on the issue of compensatory damages, directed the agency to provide training for, and consider taking disciplinary action against, the RMOs, and to engage in the interactive process for determining complainant’s reasonable accommodation needs. Degnan v. United States Postal Service, EEOC Appeal No. 01A53689 (March 23, 2006).
Gender Discrimination: Assignments. The Commission found that the male complainant was a victim of gender-based disparate treatment discrimination when he was required to pull weeds on at least six different occasions, while a female comparative was never assigned this duty. The Commission rejected as pretextual the agency’s reason for having complainant pull weeds, i.e., that having finished his route early he was available for grounds maintenance at the agency’s facility. In finding pretext the Commission noted that: no one else in his class was made to pull weeds; and on at least three occasions, even while performing his primary duties, complainant was redeployed to pull weeds while his primary duties were reassigned to an outside contractor; the agency posted a vacancy announcement for complainant’s position while complainant was performing weed-pulling duties. Rowan v. Department of Veterans Affairs, EEOC Appeal No. 01A45684, request to reconsider denied, EEOC Request No. 05A60365 (March 21, 2006).
Gender Discrimination: Hostile Work Environment (Pregnancy). Complainant, a podiatric physician, testified that she was verbally harassed by another physician (“Dr. A”) who always made an issue of her pregnancy and once yelled at her because she went to an obstetrician. An AJ also found that Dr. A threatened to terminate complainant because of her pregnancy. Complainant provided extensive testimony regarding the emotional harm she suffered from Dr. A’s harassment. Complainant testified that the threats to her career and the constant harassment about her pregnancy caused her to fear that she would lose her job and her baby. The Commission found that an award of $70,000.00 in non-pecuniary damages was appropriate. Crear v. Department of Veterans Affairs, EEOC Appeal No. 07A50079 (January 26, 2006).
National Origin Discrimination: Hostile Work Environment Harassment. The Commission found that a supervisor’s frequent derogatory comments about Puerto Rico (e.g., an “island full of criminals”) created a hostile work environment based on national origin. Because the harassment did not result in a tangible employment action, the agency could have made out an affirmative defense but appeared not to have a policy and complaint procedure in place containing such elements as a clear explanation of what constitutes prohibited conduct; assurances that employees who bring complaints of harassment will be protected from retaliation, and a complaint process providing for a prompt, thorough, and impartial investigation. The Commission directed the agency to provide training to and consider disciplining the responsible supervisor, and notifying complainant of his right to submit a claim for compensatory damages. Torres v. Department of Homeland Security, EEOC Appeal No. 01A55221 (January 4, 2006).
Race Discrimination: Inadequate Agency Response to Noose in the Workplace Creates Agency Liability. The Commission affirmed an AJ’s findings following a hearing that complainant had been subjected to hostile work environment discrimination based on race (African-American) when a noose was placed in his work area. Although based on a single incident, the noose was a sufficiently severe racial symbol with violent implications that equates to a death threat. As such, the incident altered the condition of complainant’s employment. Agency management failed to take appropriate action following the incident by failing to expeditiously relay information about the noose to subordinates and by failing to adequately investigate the incident. The Commission noted that the rule on vicarious liability set forth by the Supreme Court in sexual harassment cases applies to harassment based on various protected classes. The Commission stated that it routinely applies the holdings to cases on different bases because the majority analyses in those cases drew upon the liability standards for harassment on other protected bases. Complainant was awarded $35,000.00 in non-pecuniary compensatory damages, restoration of annual and sick leave, and $34,505.87 in attorney’s fees. The agency was ordered to provide racial harassment training to all employees at the activity. Tootle v. Department of the Navy, EEOC Request No. 07A40127 (February 10, 2006).
Race Discrimination in Discipline. The Commission affirmed the AJ’s finding that the agency discriminated against complainant (African-American) for issuing him a 7-day suspension for fighting with a co-worker, not of his race, even though the co-worker was given the same discipline. The AJ found complainant’s conduct, while not proper, was far less egregious than the coworker who was the aggressor and had threatened to shoot complainant. The Commission modified the relief awarded by the AJ not to include reinstatement because complainant’s subsequent removal was the subject of a separate complaint. The Commission ordered the agency to consider complainant’s claim for compensatory damages because the AJ erred in denying compensatory damages because complainant failed to return to work after the grievance of the suspension was denied. Complainant had claimed the compensatory damages for the suspension prior to his decision not to return to work. McDaniel v. United States Postal Service, EEOC Appeal No. 07A50101 (January 10, 2006). Cf. Sims v. United States Postal Service, EEOC Appeal No. 07A50073 (December 22, 2005) (agency managers, who disliked African-Americans, identified complainant as person shown on videotape selling drugs to a police informant, contrary to evidence exculpating complainant, resulting in finding of discrimination and an award of $20,000.00 in compensatory damages).
Religious Discrimination: Failure to Provide Accommodation. Complainant was ordered off the agency’s property when he refused to remove his kufi, a prayer cap used in the practice of the Muslim faith. The Commission found that complainant, a Muslim, had a bona fide religious belief, i.e., wearing a kufi, though not required, was religious garb in the tradition of the prophet Mohammed. The Commission found that Title VII did not require the request to be in writing and that the agency was in a position to immediately grant the request without incurring an undue hardship on operations. The Commission ordered the responsible management officials to attend training on how to identify and prevent religious discrimination. Brown v. United States Postal Service, EEOC Appeal No. 01A50280 (December 28, 2005).
Retaliation Found in Termination. While the agency asserted that complainant was terminated because of her failure to comply with the terms of a last chance agreement, the record was devoid of independent evidence explaining how complainant violated the agreement. There was no statement from any responsible management official, and, thus, the agency failed to articulate any reasons for terminating complainant sufficient to overcome the prima facie case of reprisal. The agency was ordered to reinstate complainant to her position, with back pay and retroactive benefits, and conduct a supplemental investigation with regard to the issues of compensatory damages. Webb v. United States Postal Service, EEOC Appeal No. 01A54870 (December 21, 2005).
Commission Orders Expansive Remedy for Agency’s Discrimination. The Commission affirmed the AJ’s finding of discrimination based on disability (blindness) when the agency denied complainant the opportunity to fully mentor agency service trainees because the agency refused to reasonably accommodate him as an undue hardship. Complainant was selected to mentor during the first stage but was denied the opportunity at later stages solely because he used adaptive equipment. The agency argued that the AJ-ordered relief—to permit complainant to mentor in all three stages whenever he volunteered—was too broad, because the agency had an MOU with the union for seniority-based list of qualified volunteers and the relief would place complainant in a more favorable position than other employees. But, the Commission found no “list” of volunteers and found that complainant would have likely served as mentor in all three stages of the program, absent the agency’s discrimination. The Commission directed that, in the future, whenever complainant volunteered to serve as a mentor, the agency shall select him by the same method it selected every other employee. Boules v. Social Security Administration, EEOC Appeal No. 07A50054 (January 11, 2006).
Appeal Dismissed for Failure to Provide Interim Relief. The Commission dismissed an agency’s appeal of an AJ’s decision that included an order of interim relief, pursuant to 29 C.F.R. §§ 1614.505(a) and (b), which require the agency to comply with an AJ’s order of interim relief when it appeals a case involving removal, separation, or suspension beyond the date of the appeal, and when the AJ orders retroactive restoration. The agency must notify the Commission and complainant in writing, at the same time it appeals, that the relief is temporary or conditional and, if applicable, that it will delay the payment of any amounts owed. If the agency fails to so notify, the Commission can dismiss the agency’s appeal. Complainant, as in this case, can request the Commission, with a copy to the agency, to dismiss the agency’s appeal within 25 days of the date of service of the agency’s appeal and the agency has 15 days from receipt of the request to respond. In this case the Commission found the AJ’s order to return complainant to work with back pay was an order for interim relief within the meaning of the regulation. Coulter-Lawson v. United States Postal Service, EEOC Appeal No. 07A50081 (January 11, 2006).
Complainant Cannot Be Compensated for His Wife’s Harm Allegedly Caused by Agency’s Actions Against Him. The Commission affirmed an agency’s award of $15,000.00, in non-pecuniary compensatory damages following a decision by the Commission finding that the complainant’s supervisor (female) sexually harassed him. But, it noted that it cannot compensate complainant for his wife’s harm (emotionally and physically, when she suffered a stroke), caused by the agency’s actions against him. The Commission ordered training and recommended that the agency consider appropriate disciplinary action. Pohlel v. United States Postal Service, EEOC Appeal No. 01A54696 (December 15, 2005).
Pecuniary Damages. The Commission found that complainant was entitled to reimbursement for mileage he incurred commuting to an alternate duty station. The Commission noted that complainant transferred to the facility in question to escape a hostile work environment, and, thus, the expenses were directly caused by the discrimination. Complainant was not, however, entitled to reimbursement for the value of his home, as he did not sell his residence and did not show that its value had been diminished. Timmer v. United States Postal Service, EEOC Appeal No. 01A53175 (January 23, 2006).
Default Judgment Entered Against Agency for Its Failure to Comply With AJ’s Orders. The Commission affirmed an AJ’s default judgment against the agency for failure to comply with the AJ’s orders, finding in favor of complainant on all issues, including a negative performance appraisal; a forced reassignment; and a nonselection. The AJ had notified the parties that failure to comply with an order could result in sanctions and further ordered the parties to comply with the applicable discovery time frames. The AJ had issued an order to show cause to the agency for its failure to comply with the AJ’s orders, but the agency did not respond. The Commission found the AJ had followed the regulations authorizing AJs to impose sanctions, putting it on notice that sanctions may be imposed and providing the agency with an opportunity to cure the noncompliance. The agency’s mail delivery problems could not excuse its noncompliance because: 1) the AJ also faxed orders; 2) the agency representative had assured the AJ that the agency would comply with a particular motion from complainant; and 3) the agency made no additional proactive efforts to ensure future receipts from the AJ. Finding that the record before the AJ was sufficient to raise an inference of reprisal, the Commission affirmed the AJ’s ordering the agency to place complainant in the position in question or an equivalent position, issue new appraisals for complainant, and pay complainant $115,000.00 compensatory damages, plus $111,618.50 in attorney’s fees. Elston v. Department of Transportation, EEOC Appeal No. 07A50019 (October 18, 2005), request to reconsider denied, EEOC Request No. 05A60283 (January 5, 2006). Cf. Torres v. Department of Homeland Security, EEOC Appeal No. 01A55221 (January 4, 2006) (AJ properly applied sanctions to complainant for his failure to provide an updated address to the agency and the AJ, by canceling the hearing and remanding the complaint to the agency for a decision on the merits of the claim).
Sanctions Warranted. The Commission found that complainant’s attorney engaged in contumacious conduct when he made insulting remarks in a request to the AJ to reconsider her denial of an extension and repeated the remarks in response to the AJ’s Show Cause Order. The Commission noted that, while counsel has the right and obligation to vigorously represent his client, the personal insults, which were disrespectful, were contumacious. Nevertheless, the Commission found that disqualifying counsel from the case was too severe. Instead, the Commission noted that, should the complainant prevail on her underlying complaint, the agency would not be required to pay fees or costs associated with the filings containing the insulting remarks. Arredondo v. United States Postal Service, EEOC Appeal No. 01A51491 (March 31, 2006).
Sanctions Reversed. The Commission reversed the AJ’s decision to impose sanctions against the complainant’s attorney for contumacious conduct by removing him from representation. In response to the AJ’s Notice of Intent to Issue a Decision Without a Hearing, the attorney included language that indicated a belief that the AJ was generally biased against complainants. The Commission found that the attorney’s conduct, while disrespectful, was not sufficient to support sanctions. The conduct was not repetitive, did not occur in the AJ’s presence, and was not so egregious that no warning should be given. Quinones v. Department of Homeland Security, EEOC Appeal No. 01A53109 (March 31, 2006), request to reconsider denied, EEOC Request No. 05A60696 (May 31, 2006).
Settlement Agreement Unenforceable. The agreement provided that the agency had forwarded or would forward documentation pertaining to complainant’s injury to the appropriate parties, including OWCP. The Commission found that, by merely agreeing to treat complainant in accordance with existing law, the agreement provided him with nothing more than that to which he was already entitled as an injured employee. Thomas v. United States Postal Service, EEOC Appeal No. 01A55327 (January 23, 2006).
Settlement Agreement Provision Void: Reformation Ordered. In a settlement agreement, the agency agreed to give complainant fair consideration for any vacancy for which he applied and that office assignments would be “fair and transparent.” The Commission found these terms to be too vague to be enforced. Further, there was no evidence that the agency was agreeing to provide complainant with anything other than that which it was already obligated to do. Given that the agreement contained other consideration, the Commission held that the agreement would be reformed without the specified provisions. Wein v. Securities and Exchange Commission, EEOC Appeal No. 01A45371 (December 15, 2005).
(In the following decisions, the Commission found that complainant’s claims were cognizable. Ed. Note.)
Wheeler v. Department of the Army, EEOC Appeal No. 01A55676 (February 7, 2006) (claim that agency, by abolishing her position, forced complainant, for discriminatory reasons, to accept retirement from her federal position, was cognizable; Commission also rejected agency’s argument that complaint was collateral attack on privatization process since there was no evidence complainant had the opportunity to raise claims of discrimination in the privatization process).
Jackson v. United States Postal Service, EEOC Appeal No. 01A55420 (December 20, 2005) (denial of transfer requests).
Kaul v. Department of Homeland Security, EEOC Appeal No. 01A54163 (December 5, 2005), request for reconsideration denied, EEOC Request No. 05A60426 (February 28, 2006) (denial in connection with overtime because complainant was pregnant stated valid claim of reprisal; complainant’s letter to agency supervisor complaining of overtime denial constituted opposition to a practice she believed to be discriminatory based on her gender).
(In the decision below, the EEOC found that complainant’s claims were not cognizable. Ed. Note.)
White v. Department of Transportation, EEOC Appeal No. 01A55076 (December 1, 2005) (enactment of dress code permitting women to dress more casually while men were required to wear business attire; no harm shown with respect to term, condition, or privilege of employment).
Failure to Provide Appeal Form Does Not Justify Tolling. The Commission held that the agency’s failure to provide complainant with an appeal form (573), on which to file his appeal, was not adequate justification for tolling the applicable time limitation. The final agency action properly notified complainant and his attorney of the time limitation for filing an appeal and the correct address for doing so. Klecka v. Department of Transportation, EEOC Appeal No. 01A55744 (January 27, 2006).
Untimely Formal Complaint. Complainant received notice of her right to file a formal complainant, but did not do so until after the 15-day time limitation. The Commission noted that while complainant had previously submitted a complaint form with her name and signature, the document was otherwise blank and did not contain a statement of the action or practice that formed the basis of the complaint in compliance with the Commission’s regulations set forth at 29 C.F.R. § 1614.106(c). Malloy v. United States Postal Service, EEOC Appeal No. 01A54899 (December 16, 2005).
Reasonable Suspicion. Complainant was demoted in February 2002, allegedly due to budgetary reasons. He contacted an EEO Counselor in November 2004, after learning that the agency had selected someone to serve in the same position that he had occupied. The Commission found that complainant did not develop a reasonable suspicion of discrimination when he was initially demoted in 2002. Instead, he only suspected discrimination when the agency hired a new employee for the position he previously held. Blair v. Department of Veterans Affairs, EEOC Appeal No. 01A55288 (December 21, 2005).
Class Action Suspends Time Limitations. The Commission found that complainant timely contacted an EEO Counselor within 45 days of the issuance of a decision denying certification to a class of which he was a potential member. The Commission noted that the commencement of a class action suspends the applicable time limitations to all asserted members of the class who would have been parties if the class had been certified. Further, complainant met the definition of an “asserted” member, as the class action was filed on behalf of the named agent’s co-workers at the facility. Sparacino v. Department of the Army, EEOC Appeal No. 01A55883 (December 8, 2005).
Time Extended: Agency Fails to Show Complainant on Notice. The Commission found that the limitation period for contacting an EEO Counselor should be extended based upon complainant’s assertion that she was unaware of the applicable limitation period. While the agency stated that EEO posters explaining the time limits were displayed at complainant’s facility, complainant submitted photographs showing that the employee bulletin boards lacked information regarding EEO rules and regulations until a date after complainant initiated counseling. The agency failed to respond to complainant’s evidence and, as such, did not meet its burden in this case. Baldonado v. United States Postal Service, EEOC Appeal No. 01A54970 (December 2, 2005).
EEO Counselor Contact Untimely. Complainant’s asking his supervisor to forward correspondence to an EEO Counselor on his behalf was found not sufficient to establish that he timely initiated his informal EEO complaint. Such contact was insufficient to show that complainant contacted an agency official logically connected with the EEO process and exhibited an intent to begin the process. Delalat v. Department of the Air Force, EEOC Appeal No. 01A54303 (December 5, 2005).
RECENT DECISIONS ADDRESSING THE “PLAINLY SUPERIOR” STANDARD
In the following recently issued cases the Commission addressed the issue of the “plainly superior” standard in nonselection matters.
Cases Addressing The “Plainly Superior” Standard in Nonselection Cases
THE PLAINLY SUPERIOR STANDARD
PROVING PRETEXT IN CASES OF NON-SELECTION
Claims of discriminatory non-selection or failure to hire generally follow the disparate treatment analysis set forth in McDonnell Douglas Corp. v. Green.(1) Once the agency has articulated a legitimate, nondiscriminatory reason for the non-selection, the burden returns to the complainant to show, by a preponderance of the evidence, that the agency’s reason was pretextual. In cases of non-selection or failure to hire, one way for the complainant to demonstrate pretext is to show that his or her qualifications were plainly superior to those of the individual selected.(2)
THE SUPREME COURT’S DECISION IN ASH, ET AL. V. TYSON FOODS, INC.
Recently, the Supreme Court addressed the use of a claimant’s superior qualifications as a means of proving pretext in the case of Ash, et al. v. Tyson Foods, Inc.(3) The claimants were African-American Superintendents at a poultry plant, and sought promotions to open Shift Manager positions. Two white males were chosen instead. Following a jury verdict for the plaintiffs, the District Court granted the employer’s motion for a new trial. On appeal, the U.S. Court of Appeals for the Eleventh Circuit found the trial evidence insufficient to show pretext with regard to one of the plaintiffs, stating that pretext could be established by comparing qualifications only when “the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face.”(4)
On appeal, the Supreme Court rejected the standard set forth by the Court of Appeals for proving pretext in cases involving hiring decisions. The Supreme Court noted that the plaintiffs had introduced evidence that their qualifications were superior to those of the two selectees. Further, in prior cases, the Court has found that an employee’s claimed superior qualifications for the position sought could potentially show that the employer’s articulated reasons were pretextual.(5) The Supreme Court found the standard articulated by the Court of Appeals to be unhelpful and imprecise. While declining to define more precisely what standard should govern pretext claims based on superior qualifications, the Supreme Court noted that courts, including the Eleventh Circuit, have set forth various different standards. For example, in Cooper v. Southern Co.,(6) the Court of Appeals for the Eleventh Circuit found that disparities in qualifications must be of such weight and significance that no reasonable person could have chosen the candidate selected over the plaintiff for the job in question. Further, in Raad v. Fairbanks North Star Borough School District,(7) the Court of Appeals for the Ninth Circuit held that qualification evidence standing alone may establish pretext where the plaintiff’s qualifications are “clearly superior” to those of the selectee. Finally, the Court of Appeals for the District of Columbia concluded, in Aka v. Washington Hospital Center,(8) that pretext may be inferred if a “reasonable employer” would have found the plaintiff to be significantly better qualified for the job. The Supreme Court also noted that the Eleventh Circuit, in the underlying decision, itself suggested that superior qualifications may be probative of pretext when combined with other evidence. Thus, the Supreme Court concluded that a test other than that articulated by the Eleventh Circuit would better ensure that trial courts reach consistent results in cases involving qualifications of applicants in hiring decisions.
COMMISSION DECISIONS DISCUSSING THE PLAINLY SUPERIOR STANDARD
Decisions Finding Discrimination
In Garcia v. Department of Homeland Security,(9) the complainant filed a formal complaint, alleging, among other things, discrimination with regard to his non-selection for a temporary Assistant Regional Director position. Complainant was serving as an Assistant Chief at the time of the action cited. The record showed that two other individuals who were serving in the same position received consecutive 30-day appointments to the Assistant Regional Director position. Both of those individuals were outside of complainant’s protected class. One of the selecting officials stated that management wanted someone from outside of the region so that agency officials could evaluate the designee’s abilities.
The Commission, however, found that rationale to be pretextual. The Commission noted that a complainant may establish pretext by showing that his qualifications were demonstrably superior to those of the selectee. In this case, the record showed that complainant authored and published an article and book for the agency, received numerous prestigious awards and letters of commendation, and participated in several major national agency programs. In addition, complainant had served as an Assistant Chief for more than 11 years, with 10 more years of experience than either of the individuals chosen for the position. Nothing in the record showed that either of the selectees had comparable credentials. Thus, the Commission concluded that complainant was discriminated against when he was not selected for the position cited.
The Commission also found that the complainant was discriminatorily non-selected in Buggs v. Federal Deposit Insurance Corp.(10) Complainant, a Management Analyst, applied for the position of Chief, Support Services Unit. According to the record, he had substantial experience within the agency in the areas of office support, facilities management, personal property management, and oversight management of contracts. His experience was directly related to the quality ranking factors for the position set forth by the agency. Complainant’s application revealed that he had significant management experience, and received many accolades for his work, including two sustained Superior Performance Awards. Nevertheless, complainant was not selected for the position in favor of a candidate outside of his protected groups. The Selecting Official acknowledged that complainant had extensive experience in the unit, including supervisory experience and an “in-depth knowledge” of current programs and policies. He stated, however, that the selectee was the best qualified candidate based upon her knowledge of the administrative programs and regulations, experience in managing a staff with “handicapped/challenged” employees, and writing ability.
The Commission found that the reasons offered by the Selecting Official were a pretext for gender and reprisal discrimination. The Commission noted that complainant had a lengthy employment history with the agency in many different lower-level management positions. Further, he had substantial experience in the precise areas the agency sought to fill through the position. On the other hand, the selectee, while serving in a detail assignment to the position in question for several months, admittedly only performed some of the duties related thereto. The record failed to show that she possessed any experience in relation to one of the placement criteria. Further, complainant’s management experience was at a higher level than the selectee’s experience. Thus, the record showed that complainant’s qualifications were plainly superior to those of the selectee. The Commission concluded, therefore, that the agency’s contention that it selected the best qualified candidate was not credible and was a pretext for discrimination.
In Harley v. Department of Labor,(11) the Commission found that complainant was subjected to race discrimination when he was not selected for the position of Wage and Hour Specialist. Complainant, who was not an agency employee at the time of his application, was interviewed and recommended for the position. Nevertheless, the Selecting Official, who did not conduct the interviews, chose another applicant. The Selecting Official stated that he chose the selectee, who worked at a different agency facility, because she was better qualified than complainant.
The Commission determined that complainant’s qualifications were plainly superior to those of the selectee. The official who conducted the interviews recommended complainant for the position, stating that he had given the matter considerable time and thought. The official noted that he believed complainant was the stronger candidate based upon his managerial experience, work toward a college degree, military experience, work experience, and performance during the interview. On the other hand, the official noted that the selectee’s experience was primarily secretarial, and she possessed less formal education. Further, while the agency asserted that the selectee had knowledge of the laws and regulations enforced by the Division, the record showed that complainant possessed similar knowledge. Thus, complainant established that the agency’s rationale for the action was a pretext for discrimination.
The complainant in Hart v. USPS,(12) applied, but was not selected for the position of Manager, Customer Services. At the time, complainant was working as a Supervisor, Customer Services. The Selecting Official stated that complainant was not selected for the position because he required frequent follow-up on daily operational functions, as well as programs or projects that he was required to complete, while the selectee did not require such follow-up and completed special projects in a timely manner. The Commission, however, found the rationale offered by the Selecting Official to be a pretext for race discrimination. Specifically, the Commission concluded that complainant’s qualifications were observably superior to those of the selectee. According to the record, complainant had more than 12 years of supervisory experience, in comparison to the selectee’s one year. Further, while complainant submitted documentation to support his assertion that he was better qualified for the position, there was no evidence to support the Selecting Official’s assertions that complainant’s work required frequent follow-up. Thus, the Commission determined that complainant was subjected to race discrimination when he was not selected for the Manager position.
In Olivas v. Department of the Navy,(13) the Commission concluded that complainant was subjected to national origin discrimination when he was not selected for an Engineering Technician position. According to the record, the agency chose five individuals for promotion, each of whom was outside of complainant’s protected class. The agency asserted that those candidates selected for promotion had additional specialized experience above what was required for the position. Specifically, two of the selectees had nine to 10 years of experience in project material management, one selectee had extensive supervisory experience, one served as a Lead Progressman on special projects, and one had extensive computer experience. The Commission, however, concluded that complainant’s qualifications were superior to four of the selectees, and, thus, the rationale offered by the agency was pretextual. While one of the selectees had two more years of project management experience than complainant, the vacancy announcement did not specify a minimum number of years required, and, in fact, three of the selectees had fewer years of experience than complainant. In addition, complainant received higher scores on the Supplemental Experience and Supervisory Appraisal Form than did several of the selectees. Complainant also received multiple awards and completed a number of training courses, while at least one of the selectees did not do so. Finally, although one of the selectees did serve as a Lead Progressman, complainant served in that capacity for a greater period of time.
In Williams v. Department of Veterans Affairs,(14) the complainant filed a complaint alleging discrimination when he was not selected for the position of Patient Representative. The rating panel referred complainant as the best qualified candidate at the GS-9 level. Nevertheless, complainant was not selected in favor of another applicant. The selecting official asserted that she chose the selectee because she felt the selectee could provide a non-threatening environment for the patients, as well as work in a team setting. The selecting official also stated that the selectee was strong in terms of dealing with stress and had a good knowledge of medical terminology. The Commission found that the reason articulated by the agency was a pretext for race and national origin discrimination. The Commission concluded that complainant’s qualifications were demonstrably superior to those of the selectee. Complainant had worked for the agency as a Patient Services Assistant, a position similar to that which he sought, for eight and one-half years. He also had supervisory experience and received high ratings from his supervisor on a Promotion-Specialized Category Appraisal, as well as an “outstanding” annual appraisal. He was rated as “exceptional” in the area of knowledge of medical terminology and public relations. The selectee worked for the agency as a Claims Clerk and received a “fully successful” annual appraisal. The Commission noted that the selecting official did not articulate any reasons why complainant could not deal with stress, and did not elaborate on her assessment. Thus, the Commission found that complainant was subjected to discrimination.
Decisions Finding No Discrimination
In Kibort v. Department of the Treasury,(15) the Commission found that complainant’s qualifications were not plainly superior to those of the selectee. Complainant, a Revenue Agent, applied for a Technical Advisor position, and a Senior Program Analyst position. Complainant was placed on the best qualified list for both positions but was not selected for either one. With regard to the first position, the selecting official stated that the two individuals who were chosen had many years of experience in money laundering, the primary criteria she was looking for in a candidate. With regard to the Senior Program Analyst position, the selecting official indicated that the selectee had 16 years of management experience, including managing an Anti-Money Laundering group. The Commission noted that while complainant had experience working in the agency’s Anti-Money Laundering program, his experience was not as recent as that of the selectee, nor was his relevant experience articulated in his application package. In addition, complainant failed to show that he had as much management experience as those selected. Thus, complainant failed to show that he was subjected to discrimination.
The complainant in Davis v. USPS,(16) applied for the position of Postmaster. Although she had been working as a Postmaster at another agency facility, she was not selected for the position. The agency indicated that while complainant and the selectee had similar tenures, the selectee best fit the needs of the position, including having strong leadership qualities and experience in customer, community and labor relations. In addition, the position required management of various mail delivery routes and collections. The Commission found that complainant failed to show that her qualifications were plainly superior to those of the selectee. The selecting official stated that the selectee had improved labor relations during his tenure with the agency and that office morale and customer service improved under his leadership. The selecting official noted that complainant demonstrated limited knowledge of city delivery during her interview. The selecting official also indicated that the selectee’s leadership style, which he described as “non-militaristic,” better fit the needs of the agency. Further, the record showed that the selectee had experience in the management of both city and rural routes and collections. Thus, complainant did not establish that the agency’s stated reasons for her non-selection were pretextual.
In Thornhill v. Peace Corps,(17) complainant filed a formal complainant alleging, among other things, that he was not selected for an Administrative Officer position in Armenia. At the time of his application, complainant had recently returned to the United States after working two years as an agency volunteer. Complainant had previously retired from the federal government after working more than 35 years with the Department of the Army, most recently as the Deputy Director and Acting Director of Personnel. Complainant was initially found qualified for the position but was ultimately not selected. The Commission found that the record failed to show that complainant’s qualifications were plainly superior to those of the selectee. Specifically, the selectee spoke Russian and had computer skills. While complainant qualified for the position at a higher grade level than the selectee, that determination was made by a personnel official who measured the candidates’ credentials against the basic job requirements. The selecting official made the decision of whom to hire based upon the specific requirements of the position. Thus, the Commission found that complainant was not able to show that the agency’s stated reasons for the non-selection were a pretext for discrimination.
The complainant, in Allen v. Department of the Navy,(18) applied for a Supervisory Police Officer position. Complainant was serving as a Police Officer at an agency facility at the time of his application. The agency asserted that complainant was not selected for the position because he did not possess the necessary oral and written communication skills. In addition, the selecting official stated that he placed more emphasis on the applicants’ experience, and the selectees had more supervisory experience than the complainant. The Commission noted that the complainant contended that he was the best qualified candidate, because his education exceeded that of the selectees. However, as noted by the agency, both of the selectees had several years of supervisory experience while complainant had none. Thus, complainant failed to show that his qualifications were plainly superior to those of the selectees.
Finally, in McCoy v. Department of the Treasury,(19) the complainant, a Revenue Officer, was not selected for a promotion even though she was one of the three best qualified candidates. According to the record, complainant and the selectee were very close in their test scores. The agency, however, stated that while complainant was a competitive candidate, the interviewers believed that the selectee responded to the technical questions more accurately and comprehensively than complainant. The Commission noted that complainant’s test score was only one point higher than that of the selectee. In addition, the interview notes showed that the selectee received higher scores on his responses to all but one question. The Commission concluded that the record showed that complainant and the selectee were approximately equally qualified, and that complainant failed to show that her qualifications were plainly superior to those of the selectee. Thus, complainant failed to show that the agency’s stated reasons for her non-selection were a pretext for discrimination.
Complainants can prove pretext in cases involving the failure to hire or promote by showing that their qualifications were “plainly superior” to those of the individual selected.
1411 U.S. 792 (1973).
2This has also been referred to as “demonstrably” or “observably” superior.
3546 U.S. ___ , 126 S.Ct. 1195 (2006) .
4129 Fed.Appx. 529 (11th Cir. 2005) (citing Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004)).
5See Patterson v. McLean Credit Union, 491 U.S. 164 (1989), superseded on other grounds by 42 U.S.C. § 1981(b).
7 323 F.3d 1185, 1194 (9th Cir. 2003).
8156 F.3d 1284, 1294 (D.C. Cir. 1998).
9EEOC Appeal No. 01A32050 (January 7, 2005).
10EEOC Appeal No. 01A24607 (November 17, 2003).
11EEOC Appeal No. 07A30077 (September 30, 2003), request for reconsideration denied, EEOC Request No. 05A40178 (January 22, 2004).
12EEOC Appeal Nos. 01A05504 & 07A00052 (September 25, 2002).
13EEOC Appeal No. 01A04026 (July 30, 2002).
14EEOC Appeal No. 01996891 (February 14, 2002).
15EEOC Appeal No. 01A55010 (December 8, 2005).
16EEOC Appeal No.01A54268 (November 7, 2005).
17 EEOC Appeal No. 01A41168 (September 28, 2005).
18EEOC Appeal No. 01A52639 (August 10, 2005).
19EEOC Appeal No. 01A43311 (August 2, 2005).