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The DIGEST Of Equal Employment Opportunity Law

Volume XVIII, No.2

Office of Federal Operations

Spring Quarter 2007


Inside

Selected EEOC Decisions on:

Article

A CASE UPDATE: RACE DISCRIMINATION


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

Carlton M. Hadden, Director, OFO
Donald Names, Director, OFO Special Services Staff
Digest Staff
Editor: Arnold Rubin
Consultant: Douglas A. Gallegos
Writers: Robyn Dupont, Arnold Rubin, Gerard Thomson, James Meiburge, Veta Hurst Joe Popiden

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.

(The Digest wishes to thank the following Summer Interns for their contributions: Jordan Bowman, Jessica Buonaccorsi, Taylor Fincher, Jodie Mount, and Kristen Shepherd. –Ed.)


SELECTED EEOC DECISIONS

Attorney’s Fees

(See also, “Findings on the Merits,” and “Remedies,” this issue. – Ed.)

Commission Awards $16,000.00 in Attorney’s Fees. Following a finding by an Administrative Judge that complainant had been subjected to sexual harassment, complainant submitted evidence in support of a claim for attorney’s fees. The Commission found the requested rate of $200.00 per hour to be reasonable. Complainant’s attorney practiced in this area for 20 years, and handled numerous cases. Nevertheless, the Commission excluded 147.2 hours claimed, including work prior to complainant’s designation of representation, work connected with a federal civil action, and hours claimed for “telephone calls,” the nature of which were vague. The Commission awarded complainant $16,623.50 in attorney’s fees. Jacqueline T. Johnson v. United States Postal Service, EEOC Appeal No. 0120054278 (March 20, 2007).

Compensatory Damages

(See also, “Findings on the Merits,” and “Remedies,” this issue. – Ed.)

EEOC Awards $45,000.00 in Non-Pecuniary Damages. Following the agency’s finding that complainant was subjected to gender-based harassment, complainant submitted evidence in support of a claim for compensatory damages. Complainant stated that she experienced anxiety, sleep problems, agitation, fearfulness, and gastrointestinal problems. Further, statements from several family members and friends confirmed that complainant experienced a great deal of stress and anxiety. The record also showed that complainant attended counseling sessions during the period in question, and her psychologist noted that complainant described episodes of daily anxiety, increased stress, loss of sleep, and depression. Based upon the evidence of record, the Commission concluded that complainant was entitled to an award of $45,000.00 in non-pecuniary compensatory damages. Susan Servold v. Department of Homeland Security, EEOC Appeal No. 0120053029 (March 29, 2007).

Dismissals

(See by category, this issue.—Ed.)

Findings on the Merits

--Under the ADEA—

Age Discrimination Found in Nonselection. The Commission found that complainant was subjected to age discrimination when she was not selected for the position of Budget Analyst. The record showed that complainant was highly qualified for the position, which had been offered to two other individuals, both under the age of 40, who declined to accept the position. The Commission also determined that, while the agency asserted that complainant was not selected due to poor performance in the interview with the selecting official and in previous work situations, this was inconsistent with documentation related to the selection process, as well as with testimony provided by complainant’s supervisors attesting to her competency. The Commission ordered the agency to offer the position to complainant, with back pay and benefits. Lynn A. Windsor v. Department of Agriculture, EEOC Appeal No. 0120062755 (January 31, 2007), request to reconsider denied, EEOC Request No. 0520070336 (May 7, 2007).

--Under the Rehabilitation Act—

Agency Improperly Regarded Complainant as Substantially Limited in Working. Complainant claimed he was terminated as a Casual Mail Handler, and notified that he could not be used in any other positions for which he had applied, based on his disability (flat feet). The Commission found that the agency regarded complainant as unable to perform a class or broad range of jobs, i.e., that the agency regarded complainant as substantially limited in the major life activity of working. EEOC found that the only bar to employing complainant was the agency’s misperception that he was unsuitable because of flat feet. The Commission further found that the agency failed to consider complainant’s actual performance in the job when it terminated him. Complainant had no current physical limitations or restrictions that would have precluded him from performing the duties of the job. In fact, he had been successfully performing the Automations Clerk position for the prior six months without incident. Moreover, both the Rural Carrier position for which he had applied, and the Automations Clerk position, had virtually the same physical requirements, including standing for more than 8 hours a day.

In determining that complainant would have had difficulty performing the duties of the position on a daily basis, the agency did not appear to have considered medical documentation from complainant’s podiatrist, who contradicted the opinion of the agency’s Orthopedic Surgeon. Nor was there any evidence that complainant was afforded the opportunity to provide such documentation to the agency. Rather, the agency relied only on the Orthopedist Surgeon’s opinion that complainant could incur injury in the future if required to stand more than 8 hours a day. The assessment, however, also found complainant to be very fit and noted that he was a highly competitive martial arts instructor who competed in world championships.

Accordingly, EEOC found that the agency failed to meet its burden of showing that complainant posed a significant risk (i.e., high probability of substantial harm) that was other than speculative or remote. As part of the relief awarded, the Commission ordered the agency to offer complainant reinstatement with back pay, interest, and benefits, as well as conduct an investigation into compensatory damages. Percy J. Brown v. United States Postal Service, EEOC Appeal No. 0120054928 (June 27, 2007).

Agency Failure to Provide Hearing-Impaired Employee With Interpreter Constitutes Bad Faith. The Commission found that the agency failed to provide a hearing-impaired employee with an interpreter involving a Step 1 grievance and official talk. The Commission noted that complainant’s absence, when interpreter’s had been scheduled, was an attendance issue and could not be used as an excuse for failing to provide interpreter services when required. EEOC found that the agency’s failure to provide complainant with interpreter services on two occasions, despite his repeated requests for such, “clearly” constituted “bad faith.” Thus, complainant was entitled to present a claim for compensatory damages. EEOC also ordered the agency to conduct training and consider disciplining the individuals involved, as well as post the requisite Notice of Discrimination. Maurice Gunn v. United States Postal Service, EEOC Appeal No 0120053293 (June 15, 2007).

Qualified Hearing Interpreter Ordered. The Commission found that complainant was subjected to disability discrimination (hearing impairment) when he was denied an interpreter on two occasions. Complainant’s immediate supervisor stated that the meetings were “emergencies,” and she had asked a co-worker to serve as the interpreter. The co-worker stated that she was able to finger spell in sign language and knew several signs. EEOC found, on appeal, that using complainant’s co-worker as an interpreter did not constitute reasonable accommodation. Complainant stated that he did not understand the communications at the meetings. Further, the Commission noted that, given the co-worker’s description of her ability, she was not a qualified interpreter. EEOC noted that the evidence also did not support the supervisor’s assertion that the meetings were emergencies. The agency was ordered to provide complainant with a qualified interpreter and provide training for the supervisor. Robert V. Haggard, III v. United States Postal Service, EEOC Appeal No. 0120060330 (February 2, 2007).

Disability-Based Harassment Found. Complainant, who had psoriasis and rheumatoid and psoriatic arthritis, filed a formal complaint alleging that he was subjected to a hostile work environment. Complainant stated that his co-workers complained about his skin shedding and refused to communicate with him by, for example, refusing to convey essential work-related information. Complainant stated that he informed his supervisors about the harassment on several occasions. On appeal, EEOC found that complainant was a qualified individual with a disability, based on his arthritis, which substantially limited his ability to walk. Further, complainant was able to perform all the essential functions of his position, needing help only with climbing a ladder, which did not appear to be an essential function. The evidence also showed that complainant’s co-workers constantly complained and made offensive comments about his skin condition. EEOC found that the harassment was sufficiently pervasive such that it created a hostile work environment. The co-workers’ conduct in this case went well beyond voicing legitimate concerns about the cleanliness of a shared work space. Instead, the co-workers exaggerated the extent of complainant’s condition as corroborated by witness testimony. Finally, the Commission found the agency liable for the harassment because management was clearly aware of the incidents at issue over a prolonged period of time, yet did not take appropriate corrective action. EEOC ordered the agency to take steps to ensure that complainant was no longer subjected to harassment and to conduct a supplemental investigation with regard to complainant’s entitlement to compensatory damages. Michael A. Rainbolt v. Department of Transportation, EEOC Appeal No. 0120033857 (February 1, 2007), request to reconsider denied, EEOC Request No. 0520070563 (June 26, 2007).

--Under Title VII--

Gender Discrimination Found in Assignments. The Commission found that complainant, a Supervisory Detention Enforcement Officer, was subjected to gender discrimination with regard to the agency’s policy concerning escort details. The record showed that it was the agency’s policy that, when escorting aliens who had been convicted of a felony, at least one escort had to be of the same gender as the detainee. Complainant was not selected for an escort to Jamaica with another female officer despite being the next officer in rotation. The Commission found the agency’s policy to be facially discriminatory because of its gender classifications requiring that criteria to be used as the determining factor in designating officers for escort assignments. Further, EEOC concluded that the agency failed to show that gender was a bona fide occupational qualification reasonably necessary to its normal operations. While the agency stated that the policy was necessary for safety reasons, the record did not show that female escorts were not as qualified as males to control, restrain, and transport a detainee. EEOC noted that it was clear from the record that both men and women were physically capable of performing the tasks, which were central to the agency’s mission. In addition, EEOC found that the agency failed to show that a gender-based assignment was necessary to protect privacy concerns. The Commission noted that, while the escort was required to remain with the detainee at all times, there was no requirement for example, that the escort watch the detainee use the restroom. Testimony showed that escorts sought assistance from local or airport law enforcement when necessary. Finally, the Commission stated that there was no evidence to support the agency’s assertion that using officers of the same gender would result in fewer accusations of misconduct. Thus, EEOC found that complainant was subjected to gender discrimination and ordered the agency to pay complainant $7,000.00 in damages and review its policies and procedures relating to escort details. Regina Pratt v. Department of Homeland Security, EEOC Appeal No. 0720050059 (February 23, 2007), request for reconsideration denied, EEOC Request No. 0520070398 (May 3, 2007).

Race Discrimination Found With Regard to Time Off. The Commission found that complainant, a Rural Carrier, was subjected to race discrimination (Caucasian) when she was not given preference when days off were being granted. EEOC noted that, under agency policy, a regular carrier such as complainant was to have preference over a substitute carrier with regard to granting days off. Nevertheless, a substitute carrier was granted time off while complainant’s requests were denied. EEOC rejected the agency’s assertion that the comparative employee worked part-time, noting that the rationale appeared to be a distinction without a difference, as the employees both performed the same work for the same supervisor. The agency was ordered to investigate complainant’s claim for damages and pay reasonable attorney’s fees. Janet M. Robinson v. United States Postal Service, EEOC Appeal No. 0120055933 (January 30, 2007).

--Under Multiple Bases—

Race, Gender, and Age Discrimination Found in Nonselection and Hostile Environment Case. Complainant, a Social Insurance and Disability Program Specialist, filed a formal complaint stating that she was subjected to a hostile work environment and was not selected for a Team Leader position on the bases of race (African-American), sex (female), and age (D.O.B. 02/14/54). Following a hearing, an Administrative Judge (AJ) found discrimination with regard to both of those matters. The AJ found that the testimony of the selecting official (SO) was not credible, noting that there was no evidence to support her assertion that she chose the selectee based upon a recommendation from the selectee’s supervisor. The AJ stated that the recommendation was not in writing, and the SO did not retain any notes concerning the recommendation or other notes about any of the candidates. The AJ also noted that the SO claimed not to remember other events and was evasive in answering questions. With regard to the claim of harassment, the record showed that complainant experienced sudden changes in her work assignments, was assigned to work outside her position description, and had her leave requests disapproved without cause. In addition, her supervisor avoided communicating with her. The Commission found that these actions were sufficiently severe or pervasive to create a hostile work environment. The agency was ordered to appoint complainant to the position at issue, or a substantially-equivalent position, with back pay, as well as pay complainant $150,000.00 in damages since complainant suffered from anxiety, depression, humiliation, and sleep deprivation as a result of the discrimination. Vera H. Goodridge v. Social Security Administration, EEOC Appeal No. 0720050026 (November 15, 2006), request to reconsider denied, EEOC Request No. 0520070216 (February 27, 2007).

Race, Gender, and Age Discrimination Found in Nonselection. Complainant worked for the agency as a Supervisory Deputy with the U.S. Marshals Service. After he applied and was not selected for the position of Assistant Chief Deputy U.S. Marshal, he filed a formal EEO complaint alleging race (African-American), gender, and age (48) discrimination. An agency Career Board recommended the selectee (a 34-year-old Caucasian female) based upon her experience at the training academy, her experience as a Supervisory Deputy and Acting Chief Deputy, collateral duties, and the results of an interview. The Commission, found, however, that complainant’s qualifications were observably superior to those of the selectee. Specifically, complainant had far more experience acting as the Chief Deputy U.S. Marshal. In addition, while the Recommending Official stated that complainant had leadership deficiencies and took no new initiatives, the former Chief Deputy described complainant as a good supervisor and complainant had received two quality step increases for his superior leadership. Thus, EEOC concluded that the agency’s stated reasons for not selecting complainant for the position in question were a pretext for discrimination. The agency was ordered to appoint complainant to the position of Assistant Chief Deputy U.S. Marshal, with back pay and benefits, and pay complainant $50,000.00 in compensatory damages plus attorney’s fees. James Washington v. Department of Justice, EEOC Appeal No. 0720060092 (February 8, 2007), request to reconsider denied, EEOC Request No. 0520070324 (June 15, 2007).

Race, Sex, and Reprisal Discrimination Found. The Commission found that complainant was subjected to race (black), sex, and reprisal discrimination when she was subjected to a hostile work environment, and when she was removed from specific projects. Specifically, the record showed that management yelled at complainant, refused to communicate with her on work matters, failed to assist her, interfered with her work, and attempted to have her removed from the leasing team. The Commission found that those incidents, when considered with the reassignment of certain projects, were sufficiently severe or pervasive to create a hostile work environment. While the agency stated that complainant was removed from several projects to relieve stress she experienced, the stress was, in fact, a direct result of management’s failure to support complainant in a number of difficult situations, and its efforts to have her removed from the leasing team. As part of the relief awarded by EEOC, the agency was ordered to pay complainant $130,000.00 in compensatory damages based on medical evidence that complainant suffered significant emotional harm, including major depression, resulting from her situation at work. Gwendolyn Burton v. Department of the Interior, EEOC Appeal No. 0720050066 (March 6, 2007).

Race and Reprisal Discrimination Found. Complainant, a Tractor Trailer Operator, filed a formal EEO complaint alleging that he was discriminated against on the bases of his race (black), and in reprisal for prior EEO activity when he was denied assistance loading and unloading his truck. According to complainant, this led to a rotator cuff injury, and precluded him from working. The record showed that when complainant asked for assistance, his second line supervisor stated: “What are you going to do? Are you going to file another EEO?” In addition, when complainant asked his first level supervisor for assistance, the supervisor responded “You should have thought about that before you filed that EEO.” With regard to the claim of race discrimination, the record showed that complainant’s supervisor made a series of derogatory comments, including referring to Blacks as “monkeys,” which comments were effectively condoned by the second level supervisor. On appeal, the Commission found the remarks made by complainant’s supervisors concerning complainant’s prior EEO activity established direct evidence of retaliatory motive. Further, while complainant’s second level supervisor indicated that the agency denied complainant’s request because it would result in overtime, another management official testified that incurring overtime was not a problem in assigning an assistant. The record also showed that at least two other similarly situated employees received assistance. Thus, the Commission concluded that, in light of the disparate treatment suffered by complainant and the race-based comments made by his first level supervisor, the evidence also supported a finding of race discrimination. The agency was ordered to pay complainant $120,000.00 in non-pecuniary compensatory damages for the significant physical and emotional harm complainant suffered due to discrimination and retaliation by the agency. The agency was also ordered to calculate complainant’s entitlement to future loss of earning capacity, and pay complainant appropriate back pay, with interest. Marvin Moore v. United States Postal Service, EEOC Appeal No. 0720050084 (March 6, 2007).

Retaliation Found

(In the decisions summarized below, the Commission found that complainants had been retaliated against for their prior EEO activities.)

Nonselections. Complainant, a Postmaster at the agency’s facility in Lilburn, Georgia, applied for three positions as Postmaster of facilities closer to his home in Douglasville, Georgia, submitting the same application each time. The Commission found that complainant was subjected to reprisal when he was not referred to the selecting official for a Postmaster position in Douglasville. Although he was chosen to interview for an earlier vacancy, he was not interviewed for the position at issue after the members of the same review panel became aware of his EEO activity in connection with a prior nonselection for another of the three facilities. The Commission noted that while the panel members stated that complainant’s application for the Douglasville position was incomplete, there was no evidence to support such assertion. Thus, the Commission concluded that the stated reason for not referring complainant for the Douglasville Postmaster position was a pretext for reprisal discrimination. The agency was ordered to pay complainant $9,000.00 in compensatory damages, plus attorney’s fees. Walter Holt v. United. States Postal Service, EEOC Appeal No. 0720060034 (January 31, 2007).

Reassignment. Complainant, a Registered Nurse, filed a formal complaint alleging, among other things, that he was subjected to reprisal when he was reassigned from the Specialty Clinic to the Primary Care Clinic when he returned to work after a back injury. An EEOC AJ found, and the Commission affirmed, that the close temporal proximity between management’s knowledge of complainant’s filing his EEO complaint on February 27, 2003, and complainant’s reassignment on May 23, 2003, created an inference of reprisal discrimination. The Commission noted that while the Nurse Manager stated that there had been long-term plans to eliminate a full-time Registered Nurse from the Specialty Clinic, there was no evidence to support that assertion. Further, the EEO Counselor’s report in connection with complainant’s former complaint, concerning his heavy workload, noted the Nurse Manager’s statement that she would “have no problem” assigning complainant to the Primary Care Clinic if he felt his workload in the Specialty Clinic was too heavy. Thus, the Commission concluded that the agency’s stated reason for the reassignment was a pretext for reprisal. The agency was ordered to reassign complainant back to the Specialty Clinic, and pay him $65,000.00 in non-pecuniary compensatory damages for the mental anguish, including anxiety, depression, humiliation, and sleep deprivation, which complainant suffered following his reassignment. Samuel S. Mohr, Jr. v. Department of Veterans Affairs, EEOC Appeal No. 0720070057 (February 23, 2007).

Interference With EEO Rights. The Commission found that complainant was subjected to reprisal with regard to a remark made by complainant’s immediate supervisor. Specifically, the supervisor stated that complainant’s prior EEO complaints were “unfounded.” The Commission noted that such a comment by an agency manager interferes with complainant’s rights to pursue remedies for violations of equal employment opportunity rules and regulations. Further, the action would be reasonably likely to deter the complainant or others from engaging in protected activity. The agency was ordered to conduct training for management officials, and pay attorney’s fees. Gregory Switzer v. Department of the Army, EEOC Appeal No. 0120062080 (March 29, 2007).

Denial of Leave. Complainant, a Mail Carrier, filed a formal complainant alleging that he was subjected to reprisal when his supervisor denied his request for leave following the birth of his child. According to the record, complainant filed an EEO lawsuit in U.S. District Court that was pending at the time of the action of which his supervisor was aware. Further, while the agency stated that complainant failed to submit the required documentation prior to the birth of his child, the manager of complainant’s facility indicated that the supervisor acknowledged that complainant had been erroneously charged with leave without pay, yet he (the supervisor) refused to correct the problem. Thus, the Commission found that the reasons articulated by the agency for the action were a pretext for discrimination. The agency was ordered to pay complainant $1,500.00 in compensatory damages, and pay complainant the amount of leave he requested, with interest. Michael J. Seda v. United States Postal Service, EEOC Appeal No. 0720050090 (March 20, 2007).

Removal. Complainant worked at the agency’s Business Mail Entry Unit (BMEU) on Tour 3, supervised by S1. In March 2004, at a BMEU employee meeting, S1 stated that any employee who filed a complaint or grievance against her could expect her to come at them “with both barrels cocked.” The supervisor further stated that this was not a threat, but a promise. On June 14, 2004, complainant filed an EEO complaint alleging gender discrimination by S1 and S2 (the Supervisor on Tour 2) in connection with assignments to Detached Mail Units (DMSUs). On July 5, 2004, S1 and S2 attended a mediation with complainant. On or about September 1, 2004, S1 issued a Notice of Removal to complainant who amended his complaint on that date to allege that he was being removed from his job because of his gender and in retaliation for his prior EEO activity. Following a hearing, an EEOC Administrative Judge (AJ) found that the articulated reasons offered by the agency for complainant’s removal were a pretext for reprisal. Specifically, the AJ found that the testimony of the agency’s witnesses was not credible. In addition, the AJ noted that the agency failed to document any of the four incidents cited in the notice, or its investigation of the supervisor’s statements concerning employees who filed complaints. The AJ concluded that, contrary to the agency’s assertions, complainant performed his job in the manner which the agency expected him to. Further, with regard to two of the incidents, management did not initiate any disciplinary action at the time they occurred, and, in fact, did not document them in any way. On appeal by the agency, the Commission found that complainant was subjected to reprisal when he was issued a notice of removal. The agency was ordered to expunge its records of all references to the removal, reinstate complainant with back pay, and pay complainant $10,000.00 in compensatory damages. Jeffery Austin v. USPS, EEOC Appeal No. 0720060089 (March 9, 2007).

Reprimand and Removal. Complainant worked for the agency as a Supervisory Employee Relations Specialist. He filed a formal EEO complaint alleging, in relevant part, that he was subjected to retaliation when he was reprimanded and terminated. An EEOC AJ noted that, in upholding the Letter of Reprimand, management cited complainant’s claims of racism, which it considered not relevant. Likewise, the AJ noted that management’s Proposed Letter of Termination cited complainant’s accusations of bigotry and racial motivations against his supervisors in his Opposition to the Letter of Reprimand. The AJ also noted that, in upholding the Letter of Termination, management cited complainant’s allegations of discrimination and retaliation against his supervisors. The AJ concluded that this was direct evidence of retaliation. On appeal from the AJ’s decision by the agency, the Commission rejected the agency’s assertion that complainant was terminated because of unprofessional, belligerent and intimidating conduct against a supervisor. The Commission stated that the agency failed to discipline complainant for the alleged conduct until after he engaged in protected EEO activity. Thus, the Commission found that complainant was subjected to retaliation. The agency was ordered to reinstate complainant with back pay, expunge the termination from its records, and pay complainant $15,000.00 in compensatory damages for emotional distress resulting from discrimination and his removal; as well as nearly $32,000.00 in attorney’s fees and costs. Theodore McGary v. Peace Corps, EEOC Appeal No. 0720060027 (March 7, 2007), request to reconsider denied, EEOC Request No. 0520070500 (September 21, 2007).

Jurisdiction

(Cf. “Stating a Claim,” this issue. –Ed.)

Commission Affirms Jurisdiction Over Transportation Security Administration Regarding Rehabilitation Act Claims; Distinguishes Jurisdiction From Failure to State a Claim. This decision was a case of first impression concerning the proper interpretation and application of the Rehabilitation Act, regarding EEO complaints by Security Screeners subject to the Aviation and Transportation Security Act (ATSA). ATSA was enacted in the wake of 9/11, giving the Transportation Security Administration (TSA), a component of the Department of Homeland Security (DHS), broad authority to establish terms and conditions of employment for Security Screeners “[n]otwithstanding any provision of law.” In asserting jurisdiction, the Commission distinguished between a finding based on subject matter jurisdiction and a finding based on failure to state a claim (FTSC). The Commission affirmed an EEOC Administrative Judge’s (AJ’s) denial of the agency’s motion to dismiss for FTSC , and rejected the agency’s position that ATSA superseded the Rehabilitation Act.

EEOC acknowledged that the Rehabilitation Act cannot negate or override ATSA-mandated qualification standards. However, in this case, complainant did not challenge an ATSA-mandated standard. Rather, complainant alleged that she was a qualified individual with a disability (QID), namely bipolar disorder, who could have participated in the application process if she had been provided a reasonable accommodation to mitigate the effects of her impairment during Phase I of the Screener assessment process. EEOC found this allegation adequate to state a claim. Complainant’s doctor had asked that she be allowed to take the remainder of the TSA assessment under relatively quiet conditions and with help available to operate a computer; however, complainant was not permitted to complete Phase I and was not hired.

Citing its Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans With Disabilities Act (ADA) (rev. 10/17/2002), EEOC stated that TSA must assess whether an individual can meet ATSA-mandated qualification standards with or without an accommodation. In this regard, EEOC said that the critical point in its Enforcement Guidance was that an employer should assess the need for accommodation for the application process separately from any accommodation that may be needed to perform the job. The Commission held that “TSA must, therefore, provide a [QID] with a reasonable accommodation for the application process as long as such accommodation would not negate an ATSA-mandated standard and no undue hardship exists.”

EEOC noted that complainant’s inability to perform the essential functions of the Security Screener position was determinative, not her bipolar disorder diagnosis. “Our conclusion in this case,” EEOC declared, “does not relieve the agency of that obligation in other cases involving bipolar disorder.” In holding that TSA did not violate the Rehabilitation Act when it terminated consideration of complainant’s application, EEOC ruled that her unequivocal assertion that she was unable to cope with (what she perceived as) a chaotic testing environment, constituted an admission that she would not be able to function effectively in the “active” environment of a busy international airport. The agency was on notice of this fact at the time it denied complainant’s request to resume the Phase I assessment. Judith Getzlow v. Department of Homeland Security (Transportation Security Administration), EEOC Appeal No. 0120053286 (June 26, 2007), request to reconsider denied, EEOC Request No. 0520070839 (October 12, 2007).

Petitions For Enforcement

(See also, “Remedies,” this issue. –Ed.)

Petition for Enforcement Granted. In a prior decision, the Commission found that petitioner had been subjected to disability discrimination when the agency failed to provide him with reasonable accommodation, and ordered the agency to return complainant to his position, with back pay, restore leave used, and pay proven compensatory damages. Subsequently, the agency asserted that the parties entered into a settlement agreement and that no compensation was due complainant or his attorney. The Commission concluded that the settlement agreement referred to by the agency was not intended to dispose of the reasonable accommodation issue. Specifically, the agreement made no mention of the underlying claim. In addition, the agency did not notify the Commission of the agreement while the appeal was pending, or request reconsideration of the matter. Thus, the agency was ordered to comply with the Order in the appellate decision. Jonathan Black v. United States Postal Service, EEOC Petition No. 0420070002 (February 15, 2007).

Remedies

Commission Orders Agency to Investigate Additional Back Pay and Increases Compensatory Damages Award from $7,000.00 to $10,000.00 for Race Discrimination. Complainant filed a series of appeals with the Commission in connection with the finding of the agency (the Postal Service) that she had been discriminated against on the basis of race (Black), when, on December 27, 2000, she was not reappointed as a casual clerk at the Wichita, Kansas General Mail Facility. By way of relief, the agency agreed, in relevant part, to supplement the record within 30 days from the date the decision became final and issue a supplemental decision on lost pay and benefits; as well as conduct a supplemental investigation into complainant’s entitlement to compensatory damages within 60 days of the decision becoming final. Upon completion of the investigation, the agency would issue a final decision regarding complainant’s entitlement to compensatory damages. In ruling on complainant’s appeals, the Commission initially noted that there was a delay in issuing the decisions because complainant moved and the agency did not have a valid address. With regard to the issue of lost pay and benefits, the Commission agreed with the agency that complainant was entitled to back pay, with interest, for a 90-day casual appointment. The Commission, however, stated that there was evidence showing that many casual clerks were routinely reappointed to additional casual periods, and, as such, complainant may be entitled to additional back pay and benefits. With regard to the issue of damages, the Commission noted that complainant suffered bouts of depression and severe headaches, such that she would be entitled to an award of $10,000.00 in non-pecuniary damages and not the $7,000.00 awarded by agency. Camellia G. Lee v. United States Postal Service, EEOC Appeal Nos. 0120052097, 0120054715, and 0120054893 (February 15, 2007).

Settlement Agreements

Settlement Breach Found. The parties entered into a settlement agreement whereby the agency would provide complainant with flexibility, that is, offering her a variety of jobs outside of a particular section, as approved by complainant’s physician. The Commission found that the agency breached the agreement when it failed to offer complainant a variety of jobs outside of the specified section. According to the record, the agency offered complainant only three jobs within a 16 month period, two of which were for the same type of job. The Commission found that those offers were insufficient to constitute a variety of jobs within the terms of the agreement. Carmelita R. DeLong v. United States Postal, EEOC Appeal No. 01A53582 (July 25, 2006), request for reconsideration denied, EEOC Request No. 05A60925 (September 5, 2006).

Agreement is Void When it Violates Collective Bargaining Agreement. Complainant, a United States Postal Service employee, entered into a settlement agreement with the agency that contained the following clause, in relevant part: “If the terms of this agreement are determined to violate a provision of the applicable collective bargaining agreement (CBA), this agreement will be null and void.” While the plain meaning of the settlement clause at issue indicated that complainant would be used to oversee custodial workers when there was project work on the weekend of his tour, the agency maintained that the CBA required that it first canvas the custodial workers for overtime opportunities. The Commission considered the agency’s argument to be an admission that the subject provision violated the CBA and declared the agreement null and void. EEOC stated that complainant had the option to either renegotiate the terms of the agreement or have the agency reinstate his EEO complaint. Paul V. Amaral v. United States Postal Service, EEOC No. 0120070629 (September 26, 2007).

Stating A Claim

(In the following cases, the Commission found complainant’s claims to be cognizable. –Ed.)

Vincent McGuire v. Department of the Army, EEOC Appeal No. 0120070930 (April 10, 2007) (Management decision to place complainant on paid non-duty status because of an allegation made against him by a fellow employee, without complainant being given the opportunity to rebut the allegation; claims based on multiple protected classes.)

Amy P. Perkins v. Department of Commerce, EEOC Appeal No. 0120071101, (March 6, 2007) (Claim of retaliatory reassignment.)

Stepahnia G. Johnson v. Department Of Veterans Affairs, EEOC Appeal 0120065097 ((March 30, 2007) (Failure to accommodate complainant and assigning her work outside of her medical limitations.)

Alaina Hagerty v. United States Postal Service, EEOC Appeal No.0120070889 (April 24, 2007) (Management screaming, teasing, and ridiculing complainant for having memory problems, and also failing to re-issue her badge, actionable on multiple protected bases.)

Alanna Rorie v. Department of the Navy, EEOC Appeal No. 0120064832, (May 15, 2007)(Management decision to remove complainant from her duty station and to ultimately terminate her employment on April 17, 2006; claims based on multiple protected classes.)

Sally A. Kaborycha v. Department of Defense, EEOC Appeal No. 0120062578, (April 12, 2007)(Management’s denial of complainant’s request for placement in a GS-12 position , while placing another individual outside her protected class in that position.)

(In the following cases, the Commission affirmed the agency determination that the complainant failed to state a claim. –Ed.)

Sadie A. Williams v. United States Postal Service, EEOC Appeal No. 0120070863, (March 15, 2007) (Claim regarding complainant’s receiving notice that her request for an arbitration hearing had been denied by her union representative, is collateral attack on another proceeding and thus not actionable.)

Jessie F. Smart v. United States Postal Service, EEOC Appeal No. 0120070713, (March 29, 2007) (Failure to allege an EEO basis.)

Diane Ontivero v. Department of Homeland Security, EEOC Appeal No. 0120070120 (February 6, 2007) (Proper forum to raise challenges to actions occurring during an arbitration proceeding is that proceeding itself and not with EEOC.)

Pamela K. Riggins v. United States Postal Service, EEOC Appeal No. 0120065290 (February 6, 2007) (Harassment complaint based upon another supervisor shouting at complainant and throwing papers on her desk not viable because alleged acts did not cause complainant to suffer a loss or harm to a term, condition, or privilege of employment.)

Timeliness

Untimely EEO Contact Dismissal Reversed: Agency Failed to Meet Burden of Showing That Complainants Were On Notice of Applicable Time Period. Complaints of eleven individuals were consolidated on appeal where all claimed discrimination on bases of national origin (Filipino) and each matter arose from a common set of facts, i.e., suspension as a result of a disagreement with their supervisor. Complainants argued that they had no actual or constructive notice of the forty-five day limitation period. On appeal, the agency asserted that EEO posters were located in numerous locations throughout the workplace but did not provide any evidence that EEO posters were on display. The Commission noted that an assertion on appeal is inadequate to satisfy the agency’s burden of showing that the complainants had actual or constructive notice of the time limits. Rowena Beckmyer, et al. v. Department of the Navy, EEOC Nos. 0120073167, etc. (September 26, 2007).


A CASE UPDATE: RACE DISCRIMINATION

In the following decisions, the Commission issued findings of race discrimination.

In Janet M. Robinson v. United States Postal Service,1 the complainant, a Rural Carrier, filed a formal EEO complaint, alleging that she had been subjected to discrimination based upon her race (Caucasian) when the agency denied her requests for leave. Complainant asserted that a part-time substitute carrier (African-American) was given preference with regard to days off, and that, according to agency policy, regular Carriers were to be given preference over substitute Carriers. In addition, complainant contended that the comparative employee was allowed to come to work early and perform less strenuous tasks, while the Postmaster followed complainant on her route, and attempted to discipline her. The Commission noted that, while the comparative employee worked part-time and complainant worked full-time, both employees performed essentially the same duties for the same supervisor. Further, the Commission indicated that the statements offered by the agency failed to provide a reason for the actions. Both management officials stated that they were not familiar with the circumstances surrounding complainant’s claims. Thus, the Commission found that the agency failed to articulate any legitimate, nondiscriminatory reason for the actions, and complainant established that she was subjected to harassment based upon her race. The Commission ordered the agency to notify complainant of her right to submit objective evidence of compensatory damages and pay reasonable attorney’s fees.

The complainant in Deirdra Brown v. Department of Justice2 worked as an Assistant U.S. Attorney. She filed a formal complainant, alleging, among other things, that she was terminated because of her race (African-American). The Commission stated that the official responsible for the termination relied upon statements of complainant’s co-workers in finding that she was not a “team player,” and had personality conflicts with others in the office. The co-workers, however, had been shown to harbor racial animus toward complainant. In addition, one of the co-workers was counseled for referring to complainant in a racially derogatory manner, and another was removed for engaging in racist conduct. The Commission stated that, while it was unclear whether the responsible official herself harbored racial animus against complainant, she was the conduit of subordinate employees’ race-based animus, and her decision to terminate complainant was based upon the co-workers’ biased assessments of complainant. Thus, the Commission concluded that complainant was discriminated against on the basis of her race when she was terminated from employment. The Commission ordered the agency to offer complainant retroactive reinstatement and, if complainant rejects the offer, pay her front pay. The Commission also ordered staff training and consider disciplining the responsible management officials. The Commission remanded the issue of compensatory damages.

In Cheryl N. Cleveland v. Department of Justice,3 the Commission found that the complainant, who was African-American, was discriminated against on the basis of her race when she was denied a cash award. Complainant worked in an administrative position. According to the record, all other employees in administrative positions, who were Caucasian, received awards for the year in question. The Commission rejected the agency’s assertion that awards were given out to employees every other year, as being contrary to the evidence of record. Specifically, another employee who worked in an administrative position stated that she probably received an award every year. Further, a management official stated only that it “looked like” some employees received awards every other year. Finally, although the agency asserted that complainant had performance and leave issues that rationale was not provided to complainant when she inquired as to why she did not receive an award, and was not mentioned by the management official as having played a role in the decision. The Commission ordered the agency to pay complainant the award she would have received but for the discrimination.

The complainant in Jimmy D. Tootle v. Department of the Navy,4 worked as a carpenter. He filed a formal complaint, alleging that he was subjected to racial harassment (African-American) when management failed to take action after he found a hangman’s noose in his work area. According to the record, the noose was not found in an area exclusive to complainant, such as his locker or work vehicle. Complainant immediately reported the incident to his supervisor, and made an appointment to speak with his third-level supervisor. The third-level supervisor questioned the immediate supervisor about the incident, and, after learning that no one knew anything about who placed the noose or why, the third-level supervisor instructed the other official to remove it and instruct employees that such behavior would not be tolerated.

On appeal, the Commission found that complainant had been subjected to racial harassment. Three witnesses testified as to a pre-existing racial climate at the agency that was negative and intolerant to racial, ethnic, and religious diversity. In addition, the Commission stated that the appearance of a hangman’s noose in the middle of a workplace of African-American employees, in and of itself, created a hostile work environment. Further, the Commission found that the agency was liable for the harassment. Specifically, the agency failed to conduct an investigation into the incident to identify who was responsible. While the first-line supervisors were informed of the incident the following day, it took approximately one week for the facilities department to be appraised thereof. The Commission noted that the agency cannot avoid the responsibility of investigating severe incidents such as this by simply discarding the evidence. EEOC ordered the agency to pay complainant $35,000.00 in non-pecuniary damages, restore all annual and/or sick leave taken as a result of harassment, pay reasonable attorney’s fees in the amount of $34,505.87, conduct training, with special emphasis on the agency’s responsibilities under Title VII, and consider taking appropriate disciplinary actions against the responsible management officials.

The complainant in Nathaniel McDaniel v. United States Postal Service5 worked for the agency as a Part-time Flexible Clerk. According to the record, complainant was engaged in a confrontation with a co-worker, which included the use of offensive gestures and heated language. Complainant also asserted that the co-worker threatened to shoot him, and two witnesses reported that the co-worker mentioned a gun. Complainant received a seven calendar day deferred suspension as a result of the incident. Complainant ultimately filed a formal EEO complaint, stating that he was subjected to race (African-American) discrimination with regard to that action.

On appeal, the Commission initially noted that the co-worker, who was outside of complainant’s protected class, received the same discipline. The evidence, however, showed that complainant was not the aggressor. In addition, while complainant’s conduct was improper, it was far less egregious than that of the co-worker who threatened to shoot complainant. While the agency argued that the co-worker was not similarly situated to complainant since he held a different position and reported to a different supervisor, the Commission noted that both were non-supervisory employees who were subject to the same standards of conduct. Further, the same agency official discussed the level of discipline with both supervisors, and supplied or approved the content of the suspension notices issued to complainant and the co-worker. The Commission noted that the agency articulated a legitimate, non-discriminatory reason for the suspension, that is, complainant’s conduct in failing to work in a safe manner and engaging in unprofessional conduct. The Commission, however, concluded that complainant established that the articulated reason was a pretext for discrimination. Specifically, the agency official responsible for the discipline erroneously characterized complainant as the aggressor, and noted that complainant also talked about a gun, despite the fact that no witnesses heard complainant make such a statement. Thus, the Commission found that complainant was subjected to race discrimination with regard to the suspension. EEOC ordered the agency to remove the suspension from complainant’s official personnel file and consider his claim for compensatory damages.

In John E. Whidbee v. Department of the Navy,6 the Commission found that complainant was subjected to racial harassment. Complainant, an African-American, filed a formal complainant, alleging that his supervisor made several offensive comments, including using a racially offensive slur on several occasions, and used the “Nazi” hand gesture when greeting employees. In addition, complainant stated that the supervisor verbally abused him, yelled at him, and attempted to intimidate him. The Commission noted that several witnesses testified that the supervisor had a history of poor relations with minority employees. In addition, one employee stated that the supervisor used the racial slur “like popcorn being cooked at a multi-plex theater.” While the supervisor denied making offensive comments, the Commission found that his statements lacked credibility.

After considering all of the evidence of record, the Commission found that complainant was subjected to unwelcome verbal conduct related to and because of his race. Further, the incidents were sufficiently severe and pervasive to cause a hostile work environment. The Commission also found that, given that the harasser was complainant’s supervisor, the agency was liable for the conduct. Finally, the agency failed to show that it took reasonable care to prevent and correct the harassment, or that complainant failed to take advantage of any preventive or corrective opportunities. The record showed that complainant’s union representative informed the second-level supervisor of the offensive comments. There was no evidence in the record that the agency attempted to take any corrective action, and, in fact, the agency did not argue that it did so. There was also no evidence that the agency took action to remove the problem, such as transferring the supervisor to a different team. Thus, the Commission concluded that complainant was subjected to a hostile work environment based upon his race. EEOC ordered the agency to provide training to and consider disciplining the responsible management official, as well as investigate complainant’s entitlement to compensatory damages.

In Christopher L. Stansbury v. Department of Veterans Affairs,7 complainant filed a formal complainant, alleging that he was subjected to race (African-American) discrimination when he was denied a career-ladder promotion and placed on a pre-Performance Improvement Plan and a Performance Improvement Plan. According to the record, complainant’s Veterans Service Representative position had career-ladder potential to the GS-9 level. While complainant’s supervisor promoted two Caucasian co-workers after one year of successful performance, complainant did not receive a promotion on his anniversary date. The record does not reflect any performance problems during the period, and two performance evaluations show successful performance. Nevertheless, complainant was subsequently placed on a pre-Performance Improvement Plan, and then a Performance Improvement Plan. The Commission noted that the record reflected that complainant’s supervisor had a reputation for different treatment of African-American employees that was “common knowledge.” While the agency stated that it did not question the quality of complainant’s work, only the quantity, complainant’s position description did not reference timeliness or quantity. Further, complainant worked under the close supervision of a coach who did not view complainant as having a problem with productivity. The record showed that other, comparative employees with performance problems were not placed on a pre-Performance Improvement Plan or a Performance Improvement Plan, but were instead moved to another team. Complainant’s supervisor acknowledged that she did not counsel complainant regarding her perception of poor production, and did not provide him with the level of training provided to others. Thus, the Commission concluded that the agency’s stated reasons for the actions lacked credibility, and were a pretext for prohibited race discrimination. As part of the relief awarded, EEOC ordered the agency to retroactively place complainant in a GS-9 career ladder promotion, with retroactive back pay, as well as provide any subsequent career ladder promotions to which he was entitled during the pendency of this action.


Footnotes

1 EEOC Appeal No. 0120055933 (January 30, 2007).

2 EEOC Appeal No. 0120045121 (December 20, 2006), request for reconsideration denied, EEOC Request No. 0520070276 (March 2, 2007).

3 EEOC Appeal No. 07A60018 (June 19, 2006).

4 EEOC Appeal No. 07A40127 (February 10, 2006).

5 EEOC Appeal No. 07A50101 (January 10, 2006).

6 EEOC Appeal No. 01A40193 (March 31, 2005).

7 EEOC Appeal No. 01A33842 (January 26, 2005), request for reconsideration denied, EEOC Request No. 0520050598 (March 25, 2005).