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U.S. Equal Employment Opportunity Commission



The DIGEST Of Equal Employment Opportunity Law


Volume XXII, No. 1

Office of Federal Operations

Winter 2011


Inside

Selected EEOC Decisions on:

Article: A Disability Case Law Update


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

Carlton M. Hadden, Director, OFO
Douglas A. Gallegos, Acting Director, OFO's Special Services Staff
Digest Staff
Editor and Writer: Robyn Dupont

The Digest is now available online through EEOC's homepage at www.eeoc.gov.


SELECTED EEOC DECISIONS

Agency Processing

Attempt to Amend Complaint Improperly Dismissed. Complainant timely contacted an EEO Counselor and filed a formal complaint of race discrimination alleging that the Agency denied him access to overtime. Complainant subsequently sought to amend his complaint to include issues concerning his working conditions, leave, a letter of warning, additional overtime, and an assignment. The Agency dismissed the amended issues, stating that while they were like or related to the original issue, Complainant failed to timely raise them with an EEO Counselor. On appeal, the Commission found that the Agency erred when it dismissed the additional claims. The Commission noted that the 45 day time limit applies only to Counselor contact and not to subsequent attempts to amend a complaint. EEOC Regulation 29 C.F.R. § 1614.106(d) provides that a complainant may seek to amend a complaint at any time prior to the conclusion of the investigation, and the section makes no mention of a time limit. Further, the Agency acknowledged that there was no requirement that Complainant seek or receive counseling on the new claims. Thus, the Commission remanded the additional claims to the Agency for further processing. Braxton v. U.S. Postal Serv., EEOC Appeal No. 0120102410 (October 29, 2010).

Compensatory Damages

(The decisions below are a selected sampling of recent awards of compensatory damages. See, also, “Findings on the Merits,” this issue. – Ed.)

$165,000 Awarded for Discriminatory Hostile Work Environment. In a previous decision on appeal, the Commission found that the Agency had subjected Complainant to a discriminatory hostile work environment, and that Complainant’s termination was at least partially motivated by discriminatory animus. The Agency was instructed to conduct a supplemental investigation with regard to Complainant’s claim for compensatory damages, and the Agency ultimately issued a final decision awarding Complainant $15,000 in non-pecuniary damages. On appeal, the Commission found that the Agency’s award was inadequate. Complainant asserted that he experienced emotional and physical suffering. He stated that he lost custody of his daughter because of testimony at the custody hearing by Agency officials regarding his termination. Complainant also stated that he lost friendships, slept in his car, frequently did not have food, could not afford medical care, and did not have medical insurance. Thus, the Commission concluded that Complainant was entitled to an award of $165,000 in compensatory damages in light of the emotional distress he suffered. Padilla v. U.S. Postal Serv., EEOC Appeal No. 0120090062 (September 21, 2010).

$150,000 Awarded for Sexual Harassment and Retaliation. Following a hearing, an EEOC Administrative Judge (AJ) found that a co-worker subjected Complainant to sexual harassment for more than seven years, and that the Agency retaliated against Complainant when it assigned her fewer overtime hours than male employees. The AJ awarded Complainant $35,000 in compensatory damages, and Complainant filed an appeal with the Commission challenging the adequacy of the award. On appeal, the Commission found that the AJ’s award was inadequate. Complainant provided detailed testimony regarding the effects of the harassment, stating that she could not concentrate, could not think, had difficulty sleeping, was depressed, and suffered nightmares. In addition, Complainant stated that she yelled at her children, and the harassment affected her friendships and romantic relationships, making her “want to be away from people.” Complainant stated that she experienced chest pains, sought counseling from a psychologist, and saw a physician, but was unable to take medication for anxiety and depression because it made her ill. Two co-workers confirmed that Complainant was scared of the harasser and distraught. The Commission found the testimony compelling, showing that Complainant suffered extreme, prolonged emotional distress and harm because of the Agency’s seven-year failure to promptly and effectively address the harassment. Thus, the Commission concluded that Complainant was entitled to an award of $150,000 in non-pecuniary compensatory damages. Lopez-Rosende v. U.S. Postal Serv., EEOC Appeal No. 0120102789 (November 30, 2010).

$150,000 Awarded for Sex, Race and Reprisal Discrimination. In a prior decision, the Commission found that the Agency discriminated against Complainant on the bases of her sex, race, and prior EEO activity when it denied her request to attend training and terminated her employment. The Commission ordered the Agency to conduct a supplemental investigation with regard to Complainant’s claim for compensatory damages, and the Agency awarded Complainant $40,000. On appeal, the Commission found that the evidence of record supported a higher award of $150,000. Specifically, the record showed that Complainant suffered from depression, anxiety, stress, insomnia, difficulty concentrating, disassociation, crying spells, social isolation, damage to her professional reputation, withdrawal from relationships, and short-term memory loss. In addition, Complainant experienced nightmares, panic, worsening abdominal pain, worsening hypertension, weight loss, and worsening psoriasis brought on by stress. The Commission stated that despite Complainant’s pre-existing conditions and additional stressors, the Agency’s discriminatory termination was the proximate cause of her emotional and physical problems. The Commission concluded that an award of $150,000 was clearly supported by the evidence, and based on the actual harm experienced as a result of the Agency’s actions. The Commission also found that Complainant was entitled to payment of $39,121.59 in pecuniary damages representing foregone interest and penalties incurred as a result of the withdrawal of funds from her Thrift Savings account. Brown-Fleming v. Dep’t of Justice, EEOC Appeal No. 0120082667 (October 28, 2010).

$115,000 Awarded for Reprisal. Following a hearing, an AJ found that Complainant was subjected to unlawful reprisal when the Agency forced him to resign in lieu of termination. As relief, the AJ awarded, among other things, $15,000 in non-pecuniary compensatory damages. Complainant filed an appeal with the Commission challenging the award of damages. On appeal, the Commission found that the AJ’s award was inadequate. The record contained testimony from Complainant and his spouse showing that he suffered significant weight gain, an inability to sleep, nightmares, aggravation of physical injuries, stomach distress, change in personality, loss of enjoyment of life, withdrawal from family and friends, increased use of alcohol, lack of desire to socialize, isolation and bouts of anger. In addition, Complainant saw a therapist twice a week for depression until he could no longer afford the treatment. Complainant’s psychologist testified that he diagnosed Complainant with major depression, and that without treatment, Complainant’s prognosis was only fair. The record also showed that the discrimination resulted in a deterioration of Complainant’s relationship with his wife and daughter, leading to a separation and pending divorce. Thus, the Commission concluded that the record supported an award of non-pecuniary compensatory damages in the amount of $115,000. Chastain v. Dep’t of the Navy, EEOC Appeal No. 0120102409 (November 17, 2010), request for reconsideration denied EEOC Request No. 0520110240 (March 31, 2011).

$100,000 Awarded for Reprisal. In a previous decision on appeal, the Commission found that Complainant was subjected to reprisal when the Agency replaced him as a Supervising Attorney, and the Commission ordered the Agency, among other things, to conduct a supplemental investigation with regard to Complainant’s claim for damages. The Agency ultimately awarded Complainant $40,000. On appeal, the Commission determined that Complainant was entitled to $100,000 in non-pecuniary damages. The supplemental investigation included substantial testimony from Complainant, family members, and medical providers as to the effects of the discrimination. The evidence of record showed that Complainant suffered from major depression, diminished enjoyment of life, withdrawal from family and friends, loss of concentration, memory loss, and weight fluctuation. The Commission further noted that Complainant was hospitalized as a result of the damages suffered from the discrimination. Conrad v. Dep’t of Justice, EEOC Appeal No. 0120090690 (April 9, 2010), request for reconsideration denied EEOC Request No. 0520100327 (February 4, 2011).

$35,000 Awarded for National Origin Discrimination. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his national origin when it assigned him to full time telephone duty, and an AJ found that Complainant was discriminated against as alleged. The AJ, among other things, awarded Complainant $35,000 in compensatory damages. After the Agency reduced the award of damages, Complainant appealed the decision to the Commission. On appeal, the Commission found that the AJ’s award of damages was supported by substantial evidence and consistent with Commission precedent. Complainant suffered sleeplessness and daily humiliation for months. In addition, since only employees involved in illegal activities, those who had pending investigations, or those who violated the code of ethics were assigned full time telephone duties, Complainant retired with the stigma of having done something wrong. Thus, the Commission affirmed the AJ’s award of $35,000 in compensatory damages. Rosa v. Dep’t of Justice, EEOC Appeal No. 0720090035 (December 2, 2010).

$15,000 Awarded for Disability Discrimination. Following an investigation, the Agency found that it had discriminated against Complainant and subjected her to harassment based on her disability. As relief, the Agency determined that Complainant was entitled to, among other things, an award of $6,000 in compensatory damages. On appeal, the Commission found that the Agency’s award was inadequate. Complainant stated that she felt she was “walking on egg shells at work” and the stress of the discrimination was, at times, unbearable. She experienced anxiety, stress, humiliation, loss of self esteem, and felt management was trying to get rid of her. Complainant’s husband confirmed that the discrimination impacted Complainant’s life and eroded her self esteem. Complainant’s therapist and neuropsychologist stated that the Agency’s actions caused problems with increased depression and low self esteem. The Commission noted that the record showed that Complainant had medical conditions which pre-dated the discrimination or were aggravated by other factors. Nevertheless, the Commission found that Complainant endured severe stress for over three years, and the discrimination at work aggravated her emotional problems. Thus, the Commission concluded that Complainant was entitled to an award of $15,000 in non-pecuniary compensatory damages. Warch v. Dep’t of the Navy, EEOC Appeal No. 0120102421 (November 17, 2010), request for reconsideration denied EEOC Request No. 0520110205 (March 21, 2011).

$500 Awarded for Reprisal. In a prior decision, the Commission found that certain statements made by Complainant’s supervisor constituted a per se violation of Title VII, and that the Supervisor retaliated against Complainant when he failed to assist her in filling out a worker’s compensation form and instructed her to refrain from certain practices. The Commission ordered the Agency to conduct a supplemental investigation with regard to Complainant’s claim for damages, and the Agency ultimately determined that Complainant was entitled to an award of $500. On appeal, the Commission affirmed the Agency’s damage award. Complainant stated that she had difficulty sleeping, felt sick to her stomach, and became anxious when coming to work. She also alleged that her blood pressure became elevated, but acknowledged that it returned to normal once her Supervisor was relocated to another office. The Commission found that, based upon the evidence submitted by Complainant, the Agency’s award was adequate. Vincent v. U.S. Postal Serv., EEOC Appeal No. 0120101454 (December 16, 2010).

Compliance

Compliance with Final Agency Decision Addressed. Following a hearing, the AJ found that the Agency discriminated against Complainant on the bases of his age, sex, and prior EEO activity when it failed to select him for a Supervisory Customs Entry Officer position. The Agency implemented the AJ’s order which required the Agency to, among other things, compensate Complainant for all additional pay and benefits including Agency Thrift Savings Plan (TSP) contributions, pay interest on lost back pay and benefits, and provide Complainant with a detailed statement of its calculations regarding back pay and other benefits. According to the record, Complainant and the Agency exchanged regular correspondence regarding implementation of the order. Nevertheless, Complainant, believing the Agency had not fully complied, filed an appeal with the Commission. On appeal, the Commission initially determined that the Agency provided appropriate documentation showing how it calculated back pay, and Complainant failed to show that the Agency’s back pay calculations or the amount of money withheld was erroneous. The Commission, however, found that it was unclear from the record how the Agency calculated the interest on the back pay award. While the Agency claimed that the interest rate fluctuated, it did not specify what interest rates it applied during the relevant periods. In addition, the spreadsheets provided by the Agency did not correspond with the amount the Agency stated that it paid. With regard to the Agency’s TSP contributions, the Commission found that it was unclear whether the Agency had paid the earnings which Complainant’s account would have accrued but for the discriminatory non-selection. The Commission noted that, to the extent a complainant would have received contributions to his retirement fund as a component of his salary, he is entitled to have his retirement benefits adjusted as part of his back pay award, including receiving earnings which the account would have accrued during the relevant period. The Commission stated that the Agency must clearly document its calculations for all TSP contributions, and provide evidence showing whether it had reimbursed the lost earnings to Complainant’s account, as well as pay prejudgment interest on lost back pay and benefits, to the extent the Agency had not yet done so, at the annual percentage rate or rates established by the U.S. Secretary of the Treasury. Yovan v. Dep’t of Homeland Sec., EEOC Appeal No. 0120083601 (October 20, 2010).

Dismissals

(See also by category, this issue.—Ed.)

Complaint Improperly Dismissed as Stating the Same Claim Already Raised. Complainant filed a formal EEO complaint in 2008 raising various incidents of harassment, including her reassignment. Complainant ultimately withdrew that complaint in February 2010. On April 10, 2010, Complainant filed a second complaint alleging that the Agency retaliated against her for engaging in prior protected activity when it reassigned her to another unit in November 2009. The Agency dismissed that complaint on the grounds that the matter had been raised in a prior complaint. On appeal, the Commission found that, although the matter at issue in the April 2010 complaint was like or related to that which Complainant raised in the prior complaint, it was a separate and distinct matter. Thus, the Agency improperly dismissed Complainant’s April 2010 complaint. Forkner v. U.S. Postal Serv., EEOC Appeal No. 0120102712 (December 1, 2010).

Complainant Improperly Dismissed for Failure to Cooperate. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her when she was told to have another employee make a pay adjustment, given a detail instead of a transfer, the Acting Supervisor was told not to help her, she was accused of changing another employee’s time, and she was placed on a Performance Improvement Plan. The Agency dismissed the complaint for failure to cooperate, stating that Complainant failed to respond to an affidavit package asking her to clarify certain matters. On appeal, the Commission found insufficient evidence to support a finding that Complainant engaged in delay or contumacious conduct that would warrant the dismissal of her complaint. In addition, the Agency failed to show that the complaint could not be adjudicated without the affidavit. The Commission noted that Complainant identified the bases on which she alleged discrimination, the specific actions she believed to be discriminatory, and the management officials who took those actions. The record also contained the statements of the management officials, and various documents related to Complainant’s alleged infractions. Thus, the matter was remanded to the Agency for further processing. Blair v. U.S. Postal Serv., EEOC Appeal No. 0120103268 (November 19, 2010).

Complaint Improperly Dismissed. Complainant filed a formal EEO complaint alleging that the Agency denied her request for reasonable accommodation. The Agency dismissed the matter as alleging dissatisfaction with the processing of a previously filed complaint. The Agency asserted that the matter had been settled. On appeal, the Commission initially noted that the language of the settlement agreement stated that the Agency would continue to assign Complainant work pending her application to the District Reasonable Accommodation Committee. Subsequently, the Committee denied Complainant’s request for reasonable accommodation, and suggested that Complainant seek disability retirement. Complainant asserted that the Committee failed to engage in the interactive process, and made assumptions about her ability to work. The Commission stated that it was clear from the record that Complainant’s claim concerned the denial of reasonable accommodation, and that Complainant did not know she would be denied accommodation at the time she signed the agreement. The Commission stated that a complainant may validly waive only those claims arising from discriminatory acts or practices which pre-date the execution of the agreement, and a release or agreement that waives prospective rights is invalid. In this case, while the agreement did not include language barring Complainant from filing complaints regarding her request for accommodation, the Agency improperly treated it as such. Thus, the matter concerning Complainant’s claim that she was denied reasonable accommodation was remanded to the Agency for further processing. Wheeler v. U.S. Postal Serv., EEOC Appeal No. 0120102837 (October 7, 2010).

Complaint Properly Dismissed: Complainant Elected to File with MSPB. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it removed him from employment. The Agency notified Complainant that it accepted his “mixed case” complaint and that he would ultimately have the right to appeal the matter to the Merit Systems Protection Board (MSPB). The Agency later issued a final decision in the matter finding no discrimination, and notified Complainant of his right to file an appeal with the MSPB. Complainant subsequently filed an appeal with the MSPB, but later withdrew the appeal in an attempt to have the case returned to the Commission for an administrative hearing. An EEOC AJ dismissed Complainant’s request for a hearing, stating that Complainant had the right to appeal the matter to the MSPB, and the Agency implemented the AJ’s decision. On appeal, the Commission affirmed the dismissal of Complainant’s complaint. The Commission noted that, once a complainant elects to proceed in the MSPB forum, a later withdrawal of the MSPB appeal does not negate the prior election. Although Complainant asserted that he wanted to pursue the EEO process, the record showed that Complainant made his election when he filed with the MSPB, and the withdrawal of that appeal did not give him the right to switch to the EEO process. Rodewald v. U.S. Postal Serv., EEOC Appeal No. 0120102522 (November 12, 2010).

Findings on the Merits and Related Decisions

(See by statute, as well as multiple bases, this issue. –Ed.)

Under the Rehabilitation Act

(See article below which includes recent decisions finding discrimination under the Rehabilitation Act. –Ed.)

Under Title VII

Race Discrimination Found. Complainant was a permanent light duty employee at the Agency, with restrictions that included limited lifting, pulling, pushing, walking, standing, and kneeling. On two occasions in 2009, she requested to change one of her days off from Monday to Thursday during one week in June. Her Supervisors denied the request. Complainant then requested to use annual leave on the date in question, but this request was also denied with a notation “Quota full, resubmit at a later date.” Complainant subsequently filed a formal EEO complaint with regard to these actions alleging, among other things, that the Agency discriminated against her on the basis of her race. On appeal, the Commission found that the Agency discriminated against Complainant when it denied her requests for a change of schedule and annual leave. The Commission initially noted that Complainant established a prima facie case of race discrimination, in that she was a member of a protected group and was treated less favorably than other similarly situated employees. In addition, the Commission found that the Agency failed to carry its burden to articulate a legitimate, non-discriminatory reason for its actions. The Commission found the Agency’s assertions that Complainant could not take the day off because the quota was full and because of holiday staffing were too vague and ambiguous, and were not sufficient to rebut Complainant’s prima facie case. Thus, because the Agency failed to set forth its reason for denying Complainant’s requests with sufficient clarity, Complainant was not given a full and fair opportunity to demonstrate pretext. The Agency was ordered, among other things, to investigate Complainant’s claim for compensatory damages, and provide training for the responsible management officials. Padilla v. U.S. Postal Serv., EEOC Appeal No. 0120102224 (September 23, 2010).

Religious Discrimination Found. Complainant, a Civil Aviation Security Specialist, asked his Supervisor for leave to take part in his nephew’s confirmation. The Supervisor asked if it was possible to change the date of the confirmation, and, after making an inquiry, Complainant informed the Supervisor that the date could not be changed. Complainant’s request was forwarded to the second-line Supervisor, who denied the request citing his disbelief that Complainant needed to attend. Complainant subsequently filed a formal EEO complaint alleging, among other things, that the Agency denied his request for leave to perform the religious rites for his nephew’s confirmation. On appeal, the Commission initially found that Complainant established a prima facie case of religious discrimination. Complainant was an active member in his church, and his beliefs were genuine. In addition, he asked his Supervisor for leave to participate in a religious ceremony. The Commission further found that the Agency failed to show that accommodating Complainant’s request would have caused an undue burden. In this case, the second-level Supervisor decided on his own initiative that Complainant’s beliefs were not genuine and therefore did not require consideration. Citing Questions and Answers: Religious Discrimination in the Workplace, Q. 8 (July 22, 2008), the Commission noted that the issue of whether an employee’s beliefs are sincerely held is ordinarily not in question, but if so, the employer may make a limited inquiry into the facts and circumstances of the employee’s claim that the belief or practice at issue is religious and sincerely held, and gives rise to the need for accommodation. In this case, despite Complainant having provided such information to the Agency, the second-level Supervisor merely asserted his own opinion that Complainant did not need to attend his nephew’s confirmation. The Commission stated that, in doing so, the Agency failed to provide Complainant with reasonable accommodation of his religious beliefs, without the requisite showing of undue hardship. Thus, Complainant established his claim of religious discrimination. The Agency was ordered, among other things, to investigate Complainant’s claim for compensatory damages, and provide training to the Supervisors involved in the discrimination. Robledo v. Dep’t of Homeland Sec., EEOC Appeal No. 0120073884 (November 18, 2010).

Under Multiple Bases

Race, Color and Age Discrimination Found. Complainant filed a formal EEO complaint alleging that, among other things, the Agency discriminated against him on the bases of his race, color and age when it did not select him for a Supervisory Grants Management Specialist position. On appeal, the Commission found that Complainant was discriminated against with regard to his non-selection. The Commission initially found that Complainant established a prima facie case of race, color and age discrimination because the individual selected for the position was younger than Complainant and outside of his protected groups. The Commission then stated that the Selecting Official did not provide a sworn affidavit in the matter. The Commission noted that the Selecting Official had retired from the Agency, but stated that the Investigator waited approximately five months after Complainant filed his formal complaint before contacting the Official, and thus, failed to act expeditiously. The Commission stated that it would not consider the Selecting Official’s unsworn statements to the EEO Counselor as evidence in the case. The Commission went on to conclude that the Agency failed to meet its burden of articulating a legitimate, non-discriminatory reason for not selecting Complainant for the position. One Agency Official stated that the Selecting Official told her that the Selectee was the best candidate based upon the Selectee’s experience. In addition, another Official stated that he did not question the selection based upon his experience supervising the Selectee. Nevertheless, the Commission determined that the Agency offered very little to specifically explain why Complainant was not selected. Both of the Officials who provided statements during the investigation specifically stated that they were not involved in the selection decision, and offered no documentation to support their opinions. Thus, the Commission concluded that the Agency discriminated against Complainant when it did not select him for the position in question. The Agency was ordered, among other things, to place Complainant into the position with back pay and appropriate benefits, and investigate Complainant’s claim for compensatory damages. Harris v. Dep’t of Labor, EEOC Appeal No. 0120102099 (September 21, 2010), request for reconsideration denied EEOC Request No. 0520110064 (December 20, 2010).

Race and Age Discrimination Found. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of her race and age when it did not select her for a Program Support Clerk position. Following a hearing, an AJ found that Complainant was discriminated against as alleged. On appeal, the Commission concurred with the AJ’s findings. According to the record, 20 candidates were found to be qualified for the position and referred for consideration. The Agency selected eight candidates for the position, six of whom ultimately accepted the Agency’s offer. The Commission noted that all of the Selectees were younger than Complainant, and four were of a different race than Complainant. The Commission found that while the Agency articulated a legitimate, non-discriminatory reason for its action, that is Complainant was not among the highest scoring candidates, Complainant proved, by a preponderance of the evidence, that the Agency’s stated reason was pretextual. The record showed that the candidates were interviewed by two Recommending Officials. The AJ noted that Complainant was the only applicant for whom the Recommending Officials differed greatly in the scores they awarded. Specifically, one Recommending Official awarded Complainant the lowest score of all applicants, while the other Recommending Official awarded Complainant the highest score. Further, the first Recommending Official could not explain why he scored Complainant so poorly. The Agency was ordered, among other things, to offer Complainant the position in question with appropriate back pay and benefits, and pay her $3,000 in proven compensatory damages. Stuart v. Dep’t of Veterans Affairs, EEOC Appeal No. 0720090038 (October 19, 2010), request for reconsideration denied EEOC Request No. 0520110113 (December 2, 2010).

Retaliation

Retaliation Found. Complainant worked as a Supervisory Assistant to the Special Agent in Charge. In November 2005, he provided an affidavit for a subordinate employee’s EEO complaint. In addition, Complainant provided notes and affidavit statements in support of a co-worker’s EEO complaint. Complainant subsequently filed a formal EEO complaint himself alleging, among other things, that the Agency subjected him to retaliation. On appeal, the Commission noted that the record contained an e-mail from an Assistant Special Agent in Charge stating that he was ready to file a counter complaint against Complainant and asking two other officials for documentation of comments allegedly made by Complainant. The e-mail contained a forwarded e-mail from an EEO Counselor stating that Complainant had filed an informal EEO complaint. The Commission found that the Assistant Special Agent in Charge improperly publicized Complainant’s EEO activity by forwarding the e-mail from the EEO Counselor to other management officials. Further, pairing that e-mail with a solicitation of negative information to use against Complainant underscored the retaliatory motive for sending the e-mail. The Commission also stated that, by threatening to file a counter claim against Complainant, the Assistant Special Agent in Charge acknowledged that his e-mail was intended to challenge Complainant’s EEO activity. In addition, the Assistant Special Agent in Charge acknowledged that he ordered Complainant to give him notes that he, Complainant, had shared with an EEO Counselor regarding another official’s conduct on a selection panel, and that the Assistant Special Agent in Charge then shared the contents of the notes with that official. The Commission found that the Assistant Special Agent in Charge’s actions were reasonably likely to deter employees from engaging in EEO activity and therefore constituted unlawful reprisal. The Agency was ordered, among other things, to provide EEO training to all managers and supervisors at the facility where the discrimination occurred, and investigate Complainant’s claim for compensatory damages. Schofield v. Dep’t of Homeland Sec., EEOC Appeal No. 0120082521 (November 2, 2010), request for reconsideration denied EEOC Request No. 0520110173 (February 18, 2011).

Remedies

Front Pay Awarded. In a previous decision, the Commission found that the Agency discriminated against Petitioner on the bases of her sex, race, and in reprisal for prior EEO activity when it denied her request to attend a training conference, and terminated her employment. As relief, the Commission ordered the Agency to, among other things, offer to reinstate Petitioner to her former position, and provide Petitioner with front pay in the event that she rejected the offer of reinstatement. Petitioner subsequently filed a petition for enforcement with the Commission, stating that the Agency failed to provide her with front pay. The Commission initially rejected the Agency’s assertion that Petitioner was not entitled to front pay because she was medically unavailable for work, stating that a psychiatric report provided by Petitioner stated that she was in fact able to return to work, although not at the same location where the discriminatory conduct occurred. In addition, the Commission found that Petitioner was entitled to an award of front pay for a period of two years. While Petitioner requested front pay until retirement, the Commission found that such an award would constitute a windfall. The record showed that Petitioner was medically available for work, and an award of front pay until retirement would place Petitioner in a better position than she would have enjoyed in the absence of the discrimination. Brown-Fleming v. Dep’t of Justice, EEOC Petition No. 0420080016 (October 28, 2010).

Reinstatement to Temporary Position Proper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it did not select him for a temporary position. The term of the position was limited to one year and one day. Following a hearing, an AJ found that Complainant was discriminated against as alleged. As a remedy, the AJ ordered the Agency, among other things, to offer Complainant the position in question. Complainant ultimately appealed to the Commission, stating that the Agency only offered him a temporary appointment not to exceed one year and one day without the possibility of permanent appointment. On appeal, the Commission concurred with the AJ. Specifically, the Commission stated that retroactive reinstatement to a comparable position for the same appointment length was the appropriate remedy in this case. Complainant acknowledged that the Agency offered him a position for one year and one day, which was the length of time for the underlying appointment. While Complainant asserted that most people who hold temporary positions at the facility have received permanent appointments, he failed to produce any evidence to support his contention. Whitson v. Dep’t of the Army, EEOC Appeal No. 0120102567 (October 15, 2010).

Sanctions

AJ’s Dismissal of Hearing Request Was Proper. Complainant filed a formal EEO complaint alleging that the Agency subjected her to sexual harassment. Following the investigation, Complainant requested an administrative hearing. The AJ ultimately denied the hearing request on the grounds that Complainant failed to comply with a Scheduling Order, and a subsequent Order extending the deadline for discovery completion by not providing any of the requested information. The Agency then issued a final decision finding that Complainant had not been subjected to harassment as alleged. On appeal, the Commission noted that the EEOC Regulations afford broad authority to AJs for the conduct of hearings, including the authority to sanction a party for failure, without good cause shown, to fully comply with an order. In this case, the AJ informed Complainant that her failure to respond to the second Order, in the absence of a timely request for an extension, would be considered abandonment or a waiver of her request for a hearing. Complainant failed to submit any of the information required by the AJ. Thus, the Commission found that the imposition of a sanction was properly within the AJ’s discretion, and the AJ properly remanded the case to the Agency for a decision on the record. Murphy v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120091774 (October 15, 2010), request for reconsideration denied EEOC Request No. 0520110144 (February 3, 2011).

Settlement Agreements

Settlement Agreement Void: No Meeting of the Minds. Complainant and the Agency entered into a settlement agreement which provided, in pertinent part, that the Agency would research the overtime schedule to determine whether Complainant was passed over for such hours. If the Agency determined that Complainant was improperly passed over, “a makeup opportunity” would be afforded to her. Complainant alleged that the Agency breached the agreement when it failed to provide her with make-up overtime hours. On appeal, the Commission found that the terms of the agreement concerning overtime were too vague and general to have allowed for a meeting of the minds. The Agency conceded that a review of the overtime tracking sheet showed that Complainant was by-passed for overtime for a total of 60 hours, but stated that Complainant was given 60 hours of make-up overtime. Complainant, on the other hand, asserted that the overtime offered her was not make-up overtime because it was offered on days that she normally worked overtime, and on days when all employees were required to work. Thus, the Commission concluded that there was no contemporaneous meeting of the minds between the parties concerning the make-up overtime, and the settlement agreement was void. Crutcher v. U.S. Postal Serv., EEOC Appeal No. 0120102764 (December 10, 2010).

Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement which provided, in pertinent part, that the Agency would pay Complainant at the GS-7 level for a specified period of time, “without overtime and subject to applicable holdings, offset by earnings and income exempt unemployment benefits…, but including interest and credit for purposes of seniority, leave, and retirement.” Complainant first alleged that the Agency breached the settlement agreement in 2008 when it failed to pay her the money owed. In Lien v. Dep’t of Homeland Sec., EEOC Appeal No. 0120084005 (January 30, 2009), the Commission found that the Agency was making a good faith effort to comply based upon its assertions that it had made one payment to Complainant and was attempting to determine the remaining amount. Complainant subsequently notified the Agency, in September 2009, that it had still failed to pay her the money owed under the settlement agreement. This time on appeal, the Commission found that the Agency was in breach of the agreement. The Commission noted that it appeared that the Agency closed the file in the matter once it received the Commission’s prior decision, which was not the Commission’s intention. The Commission stated that the Agency was expected to continue its efforts to pay Complainant the money owed. The Commission concluded that, given that nearly two years had passed since the issuance of its initial decision and the fact that the Agency had apparently not made any further efforts to calculate the money owed Complainant, the Agency was now in breach of the agreement. The Commission accepted Complainant’s calculations showing that she is entitled to a specified sum in back pay. In addition, the Commission stated that Complainant was entitled to any additional attorney’s fees incurred in seeking that payment. Lien v. Dep’t of Homeland Sec., EEOC Appeal No. 0120101103 (November 4, 2010), request for reconsideration denied EEOC Request No. 0520110189 (February 18, 2011).

Breach of Settlement Found: Agency Acted in Bad Faith. Complainant and the Agency entered into a settlement agreement which provided, in pertinent part, that the Agency would place Complainant into a specific Building Management Custodian position and pay her back pay. Approximately six months later, Complainant notified the Agency that she believed the agreement had been breached. Specifically, Complainant asserted that the Agency knew that the building where the position was located would be closing but failed to disclose the information to her before she signed the agreement. On appeal, the Commission found that the Agency acted in bad faith when, despite having knowledge of the pending closure of the building where the position specified in the agreement was located, the Agency failed to disclose the information to Complainant or her representative. Thus, the Commission found that the Agency breached the agreement, and remanded the matter for further processing. Suter v. U.S. Postal Serv., EEOC Appeal No. 0120093523 (October 19, 2010).

Breach of Settlement Found. The parties entered into a settlement agreement which provided, in pertinent part, that the Agency would “use the VRI system” when the Postmaster called all employees together on the floor for talks on three specified dates. Complainant subsequently alleged that the Agency breached the agreement when it did not use the VRI system on one of the dates listed in the agreement. On appeal, the Commission found that the Agency breached the agreement. The Agency asserted that it informed Complainant in writing of the issues that were discussed because at the time of the talk, the VRI system was not operating. The Commission found, however, that there were other days when the Agency gave talks where Complainant was present and VRI was not provided in breach of the agreement. Soto v. U.S. Postal Serv., EEOC Appeal No. 0120102801 (October 12, 2010).

Stating a Claim

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

Castillo v. U.S. Postal Serv., EEOC Appeal No. 0120103353 (December 21, 2010) (the Complainant’s claims that the Agency discriminated against her when it did not properly adjust her route, disciplined her for unauthorized overtime, and subjected her to excess scrutiny, when considered collectively, stated a viable claim of harassment).

Doster v. Dep’t of the Army, EEOC Appeal No. 0120103411 (December 14, 2010) (the Complainant, a former Agency employee, stated a viable claim of retaliation when he alleged that the Agency requested that his current employer terminate him from his position. The Commission noted that the action was akin to the Agency refusing to provide post-employment letters or offering negative references to prospective employers).

Brown v. Dep’t of Def., EEOC Appeal No. 0120103139 (December 8, 2010) (the Complainant’s claim that the Agency discriminated against him when it placed him on a performance improvement plan stated a viable claim of retaliation. Although, in most cases, a performance improvement plan does not constitute an adverse action sufficient to render an employee aggrieved, the Commission has a policy of considering reprisal claims with a broad view of coverage).

Whigman v. U.S. Postal Serv., EEOC Appeal No. 0120102778 (November 3, 2010) (the Complainant stated a viable claim of retaliation when he alleged that his Supervisor gave him a letter threatening to sue Complainant and his attorney, and mail concerning his EEO complaint was returned to his representative, since such actions can have a potentially chilling effect on the EEO process).

Miller v. U.S. Postal Serv., EEOC Appeal No. 0120093703 (October 21, 2010) (the Complainant’s claim that the Agency denied her request to change her work location and assigned work outside of her medical restrictions stated a valid claim of discrimination. The Agency mischaracterized Complainant’s claim as merely alleging the denial of a preferred assignment).

Clark v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120102177 (October 15, 2010) (the Complainant stated a viable claim of harassment by the Agency’s Chief, Office of Business Oversight. Complainant listed numerous incidents involving the Chief which occurred for over one year, and included comments such as “you think I got it made as a White man,” and if anyone accused him of racism, he would “meet them in the alley” which the Commission found troubling).

Hansen-Schoolderman & Sanders v. Dep’t of the Army, EEOC Appeal Nos. 0120103075 & 0120103055 (October 12, 2010), request for reconsideration denied EEOC Request Nos. 0520110060 & 0520110063 (December 17, 2010) (the Agency improperly dismissed Complainants’ claims of discrimination on the grounds that they were not Agency employees. The evidence, including a statement in the Handbook outlining the relationship between the Agency and the contractor which provided that Complainants would “work within the same employer-employee relationship that exists for government employees,” was sufficient to show that Complainant’s should be treated as Agency employees for purposes of filing an EEO complaint).

(In the following case, the Commission affirmed the Agency’s determination that the Complainant failed to state a claim. –Ed.)

Felt v. Nat’l Aeronautics & Space Admin., EEOC Appeal No. 0120103036 (November 29, 2010) (the Complainant’s allegation that the Agency discriminated against him with regard to an unsolicited proposal he submitted failed to state a viable claim. The Agency’s rejection of Complainant’s unsolicited proposal concerned his capacity as a private individual and did not affect a term, condition or privilege of employment).

Camp v. U.S. Postal Serv., EEOC Appeal No. 0120102965 (October 25, 2010) (the Complainant’s allegation that management failed to post a job vacated by a retired employee fails to state a viable claim. Complainant did not dispute that all employees, regardless of protected bases, were affected in the same way by the Agency’s action).

Summary Judgment

AJ’s Decision on Summary Judgment Was Proper. Complainant, an Acting Supervisor, filed a formal EEO complaint alleging that she was subjected to harassment when an employee under her supervision approached her from behind and placed a noose around her neck. Complainant stated that she informed the Mailing Standards Specialist and Acting Plant Manager of the incident the following day, and told them she wanted to talk to the employee before management took any action. Complainant talked with the employee, and, after returning to work following the weekend, Complainant asked management to investigate the incident. Management began its investigation that same day, and also placed the employee in off duty status. The employee did not return to work and was subsequently terminated. An AJ ultimately issued a decision in the matter without a hearing, finding that, although the incident in question constituted prohibited harassment, the Agency was not liable because it took prompt remedial action. On appeal, the Commission found that the AJ’s grant of summary judgment was proper, because the investigative record was adequately developed, there were no genuine issues of material fact, and there were no findings of fact made by weighing conflicting evidence or assessing witness credibility. The Commission noted that it was undisputed that the noose incident occurred, and that the incident was severe enough to constitute harassment. The Commission further agreed with the AJ that the Agency was not liable because it took prompt and appropriate remedial action. The Commission noted that the Agency did not become aware of the incident until the day after it occurred, at which time Complainant requested to be allowed to first talk to the employee. The Agency then began its investigation on the day Complainant requested such action, and removed the employee from the workplace. There was no evidence that any discriminatory harassment continued in Complainant’s workplace. Douglass v. U.S. Postal Serv., EEOC Appeal No. 0120091037 (October 26, 2010).

AJ’s Decision on Summary Judgment was Proper in Part. Complaint worked for the Agency in a term position. He filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his disability when he was declared ineligible for a permanent position, and denied the use of voice recognition software as a reasonable accommodation. Following an investigation, Complainant requested an administrative hearing. After Complainant failed to comply with an Order to provide discovery responses, the AJ rendered summary judgment on the first claim as a sanction. Further, the AJ found no discrimination with regard to the second issue. On appeal, the Commission initially found, with regard to the claim of non-selection for a permanent position, that summary judgment was a disproportionately harsh sanction for Complainant’s untimely discovery responses. While the Commission agreed that Complainant and his counsel delayed the discovery process, the Commission stated that the AJ acknowledged that much of the information sought by the Agency was already contained in the record. Thus, the Agency was not unduly prejudiced by the delay since it could refer to the investigative file for the information. In addition, while Complainant’s attorney provided the discovery responses after the deadline set by the AJ, he did so well in advance of the hearing. Thus, the Commission determined that it was improper for the AJ to grant summary judgment to the Agency without notice to Complainant, without affording Complainant an opportunity to respond, and without including a comprehensive statement of undisputed facts. The Commission noted that there were genuine issues of material fact regarding the non-selection, including a dispute as to whether Complainant was qualified for the position, such that a hearing was necessary in the matter. With regard to the second claim, the Commission stated that the undisputed facts show that Complainant obstructed the interactive process by failing to provide requested medical documentation explaining how the requested voice recognition software would restore him to a full-time schedule. While Complainant stated that he provided a note from a doctor, the Commission found that the note did not in fact contain any reference to voice recognition software. In addition, while Complainant included a one-page statement from the doctor with his brief opposing summary judgment, the Commission found that it was submitted more than one year after Complainant filed his formal complaint. Thus, the Commission stated that the Agency was not liable for failing to provide Complainant with voice recognition software after he failed to produce requested medical information within a reasonable period of time. Laney v. Dep’t of Homeland Sec., EEOC Appeal No. 0120091518 (October 21, 2010).

Summary Judgment Improper. Complainant, a Toolmaker, filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of his race, sex, color, and in reprisal for prior EEO activity when he was not selected for a detail to a supervisory position. Over Complainant’s objections, an AJ issued a decision in the matter without a hearing finding that Complainant failed to prove discrimination. On appeal, the Commission found that there were genuine issues of fact such that a hearing in the matter was necessary. Specifically, the Commission stated that the record contained conflicting information regarding whether Complainant was considered for the detail. The Selecting Official indicated that there were two employees on the list of interested candidates he received, and he chose the Selectee because the other employee had previously been awarded a detail. The Plant Manager, however, stated that Complainant was also on the list of interested candidates. Thus, the Commission found that, based upon the statements of the Selecting Official and the Plant Manager, it was unclear what the reasons were for Complainant’s non-selection. The Commission stated that the basis for the Selecting Official’s decision is a question of fact which is material to the disposition of the complaint. Thus, the matter was remanded for an administrative hearing. Stambaugh v. Dep’t of the Treasury, EEOC Appeal No. 0120092641 (December 15, 2010).

Timeliness

Formal Complaint Deemed Timely. Complainant contacted an EEO Representative at the Agency alleging that the Agency subjected her to harassment of the bases of her race, disability, and prior EEO activity. Complainant’s attorney received a Notice of Right to File a formal complaint on February 20, 2008, and Complainant filed her formal complaint on April 21, 2008. The Agency accepted the complaint, and, following the completion of its investigation, Complainant requested an administrative hearing. The AJ ultimately dismissed the complaint as untimely, and the Agency adopted the AJ’s dismissal. On appeal, the Commission found that the record contained adequate justification to warrant an extension of the time limit for filing a complaint. Complainant submitted an affidavit to the AJ in opposition to the Agency’s motion to dismiss in which she averred that during the period when her complaint was due she was unable to assist her attorney and did not have the mental capacity to do anything related to her job. Complainant’s attorney stated that she was “non-communicative and unresponsive.” Further, the record contained a statement from Complainant’s treating psychologist completed during the period in question indicating that Complainant was diagnosed with a major depressive disorder, severe, recurrent psychosis, and post traumatic stress. The psychologist indicated that Complainant was unable to work due to her mental health conditions. The Commission stated that even though there was some evidence of improvement in Complainant’s condition by March 2008, Complainant produced sufficient evidence of the limiting effects her mental illness had on her ability to timely file her complaint. White v. Dep’t of Health & Human Serv., EEOC Appeal No. 0120102784 (November 29, 2010).

Formal Complaint Timely Filed. Complaint contacted an EEO Counselor alleging that the Agency subjected him to discriminatory harassment. Complainant was issued a Notice of Right to File a formal complaint on March 24, 2010. Complainant contacted the EEO Counselor in April, indicating that he did not believe he had an actual final interview and that he did not believe that counseling had ceased. The EEO Counselor told Complainant that she had completed counseling and stated that she would mail Complainant a second Notice of Right to File. Complainant received the second Notice on April 24, 2010, and filed his formal complaint on April 27, 2010. The Agency subsequently dismissed the complaint as untimely based upon the date of the first Notice. On appeal, the Commission found that Complainant timely filed his formal complaint. The Commission noted that the EEO Counselor volunteered to send Complainant a second Notice of Right to File, and, therefore, the second Notice superseded the first Notice for purposes of determining the timeliness of the formal complaint. Middleton v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120103021 (November 12, 2010).

Claims Regarding Allegedly Discriminatory Pay and Pension Checks Were Not Timely Raised with EEO Counselor. Complainant retired from the Agency in 1997. In May 2009, Complainant contacted an EEO Counselor, and subsequently filed a formal complaint alleging that the Agency discriminated against her when it paid her less than similarly situated male employees during the last three years of her employment. In addition, Complainant alleged that she has been receiving less in retirement pay than she is entitled to receive. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission initially found that the Agency properly dismissed the allegation concerning the pay Complainant received while she was employed. The Commission noted that Complainant retired and received her last paycheck over 12 years prior to the time she contacted the Counselor. In addition, the Commission found that Complainant failed to timely raise the claim concerning her pension checks. In a matter of first impression, the Commission stated that Section 2(4) of the Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 (January 29, 2009), provides that “[n]othing in this Act is intended to change current law treatment of when pension distributions are considered paid.” The Commission noted that the legislative history of this provision of the Act supports differentiating between wage-based claims and claims based on pension payments. In addition, the Commission stated that Complainant did not point to any convincing evidence that the reasoning applied to date, that is a series of payments of discriminatory wages may constitute a continuing violation while a series of payments of discriminatory pension benefits usually does not, should not apply in the instant case. Brakeall v. Envtl. Prot. Agency, EEOC Appeal No. 0120093805 (November 30, 2010).

Time Limit for Contacting EEO Counselor Tolled. Complainant contacted an EEO Counselor on February 10, 2010, and subsequently filed a formal complaint alleging that she was subjected to hostile work environment harassment for a period of approximately 10 years culminating in an incident in late May or early June 2009 when an explicit drawing of Complainant was placed in the men’s restroom. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission found that the dismissal was improper. The Commission noted that Complainant provided extensive medical records documenting her in-patient hospital stay immediately following the most recent incident. For example, in a letter dated February 3, 2010, Complainant’s physician stated that Complainant had been unable to work since June 2009, was incapable of working at the present time due to symptoms of post traumatic stress disorder, and it was undetermined when she could return to work. Further, the physician later stated that Complainant had been “incapacitated from initiating EEO counseling.” Thus, the Commission concluded that Complainant was sufficiently incapacitated so as to warrant the tolling of the time limit for initiating EEO counseling. The Commission also noted that the Agency failed to satisfy its burden of showing Complainant had constructive notice of the applicable time limits. While an Agency supervisor stated that an EEO poster was placed on the employee bulletin board and in the lobby, several employees asserted that the poster was placed in a manner that was not “reasonably geared” to inform Complainant of the limitation period. O’Neill v. U.S. Postal Serv., EEOC Appeal No. 0120103027 (October 29, 2010).

EEO Counselor Contact Deemed Timely. Complainant contacted the Agency’s EEO Officer and Chief of Human Resources to advise them that, from August 2003 until February 2005, she served as the acting Ethics Officer without receiving higher pay. Complainant indicated that she was told the matter was a prohibited personnel practice that should be raised with the Office of Special Counsel (OSC). Complainant received a letter from OSC on January 12, 2007, informing her that the matter she raised concerned discrimination, and was appropriate for the EEO complaint process. Complainant contacted the Agency’s EEO Office on February 23, 2007, and subsequently filed a formal complaint with regard to the matter in question. The Agency dismissed the complaint for failure to timely contact an EEO Counselor. On appeal, the Commission noted that a high ranking Agency official initially told Complainant that she did not have an EEO matter and she needed to contact OSC. The Commission found that the Agency’s EEO Officer and Chief of Human Resources dissuaded Complainant from initiating an EEO complaint, and Complainant timely contacted the EEO Office once she was informed by OSC that her claim constituted an EEO matter. Thus, the Commission concluded that the Agency improperly dismissed Complainant’s complaint, and remanded the matter for further processing. Bolden v. Dep’t of Agric., EEOC Appeal No. 0120093444 (October 21, 2010).

ARTICLE
A DISABILITY CASE UPDATE

(The following article is not intended to be an exhaustive or definitive discussion of a complex area of law, nor is it intended as legal advice. The article is generally based on EEOC documents available to the public at the Commission’s website at www.eeoc.gov, as well as on Commission case law. Some decisions cited may have appeared in previous editions of the Digest. –Ed)

INTRODUCTION

Section 501 of the Rehabilitation Act of 1973, as amended,1 prohibits employment discrimination on the basis of disability. A qualified individual with a disability is protected from discrimination with regard to any aspect of employment, including hiring, firing, assignments, benefits, and any other term, condition, or privilege of employment. An employer may not treat an employee or applicant for employment who is a qualified individual with a disability unfavorably because he or she has a disability.

COMMISSION DECISIONS

Medical Inquiries

Section 501 of the Rehabilitation Act places certain limitations on an employer’s ability to make disability-related inquiries or require medical examinations of employees. The inquiry or examination may be ordered only if it is job-related and consistent with business necessity.2 This means the employer must have a reasonable belief based on objective evidence that an employee will be unable to perform the essential functions of the job because of a medical condition or will result in a direct threat to themselves or others, and an employer must seek only that information necessary to make such a determination.3

In Cofield-Gipson v. Dep’t of Justice,4 Complainant, a Cook Supervisor at a Federal Correctional Institution, sustained injuries when a metal food cart fell on her, and when she tripped over a pallet. Complainant was given light duty work for over six months, after which she was notified that her light duty assignment would be terminated. Complainant was then charged with annual leave when she did not report to work. In addition, the Agency directed Complainant to attend a fitness for duty examination with a psychiatrist pursuant to Complainant’s physician’s recommendation after he was unable to identify any physical problems. Complainant ultimately filed a formal EEO complaint alleging, among other things, that the Agency discriminated against her when it ordered her to undergo a psychological fitness for duty evaluation. Following an investigation, the Agency issued a final decision stating that Complainant was ordered to undergo a psychological evaluation so the Agency could obtain information on when she could return to work and how her condition impacted her duties. In particular, the Agency indicated that it was seeking more information regarding her medical condition in order to provide her with a reasonable accommodation. On appeal, the Commission found that the Agency failed to meet its burden of showing that a psychological examination was needed. The Commission stated that the Agency presented no evidence that Complainant’s mental state was at issue or that it felt that she was unable to perform the essential functions of her job because of a mental condition. The Commission ordered the Agency, among other things, to investigate Complainant’s entitlement to compensatory damages.

In Snyder v. U.S. Postal Serv.,5 Complainant worked for the Agency as a Mail Processing Clerk, and due to medical restrictions, her primary duty involved placing address labels on pieces of mail that had been repaired so that they could be returned to customers. According to the record, Complainant complained to management that other employees were discarding deliverable mail. Agency management investigated Complainant’s allegations, and determined that the mail in question was undeliverable bulk mail. Complainant’s supervisor indicated that Complainant had been going through the waste basket on a daily basis after being instructed not to do so. The following day, Complainant was ordered to undergo a fitness for duty (FFD) examination. Complainant underwent a two and one-half hour examination, and the physician diagnosed her as having delusional and depressive disorders. He stated that Complainant needed psychiatric treatment because of her failure to follow instructions regarding discarded mail and her inability to control her behavior. The doctor concluded that Complainant was unfit for duty, and the Agency’s Medical Director concurred with the assessment. Complainant was advised that, in order to return to work, she must initiate treatment with a psychiatrist who must then submit a written recommendation to the Agency’s medical unit. Complainant complied with the Agency’s requirement, and returned to work several months later. She also filed a formal complaint of disability discrimination.

An AJ held a hearing in the matter, and found that the Agency violated the Rehabilitation Act when it ordered Complainant to undergo a psychiatric FFD examination. The Commission affirmed the AJ’s decision on appeal. The Commission stated that the record was devoid of any evidence that would support a reasonable belief that Complainant could not perform the essential functions of her job or posed a direct threat to herself or other employees. The Agency claimed that Complainant displayed irrational behavior when she accused another employee of improperly discarding mail, had strained relationships with co-workers, disrupted other employees, and failed to follow instructions. The Commission stated that while such conduct may have warranted discipline, it did not lead to the conclusion that the Agency reasonably believed Complainant was a direct threat to herself or others or was unable to perform the essential functions of her job. The Agency was ordered to expunge all documentation associated with the FFD examination from Complainant’s personnel files, pay Complainant for any pay lost during the period she was in a “non-work” status, and credit Complainant for any leave used or lost during the period in question.

In Morrow v. U.S. Postal Serv.,6 Complainant sought a transfer to a different office in order to join her husband. When it became apparent that she would not be able to readily obtain a reassignment within her craft, she requested a change of craft. She was subsequently required to undergo two fitness for duty examinations. The first examination was ordered by the Medical Officer at her current office. The Agency’s policy mandated that Complainant undergo a change of craft fitness for duty examination because she requested reassignment to a more strenuous position. As a result, Complainant was cleared for duty. The Medical Officer at the office where Complainant was seeking assignment ordered a second examination solely because he believed there was an inconsistency in the initial examination. He did not conduct a physical examination of Complainant, and did not speak to or question Complainant or the physician who performed the first examination.

The AJ found that the record evidence established that the Agency did not have a reasonable belief that Complainant’s ability to perform essential job functions would be impaired by her alleged medical condition in that Complainant was found fit for duty by the Agency’s own medical officer. The Commission noted that employers may require a medical examination or make disability related inquiries of an employee only if the examination is job-related and consistent with business necessity. The Commission stated that this requirement is met when the employer has a reasonable belief, based on objective evidence, that (1) an employee’s ability to perform the essential job functions is impaired by a medical condition; or (2) that an employee poses a direct threat due to a medical condition. The Commission held that substantial evidence in the record supported the AJ’s determination that the Medical Officer who ordered the second examination did not have a reasonable belief that Complainant’s ability to perform the essential job functions was impaired by a medical condition, or that she posed a direct threat due to a medical condition. Thus, the Commission found that the Agency discriminated against Complainant. The Agency did not specifically object to the remedies ordered by the AJ, and, as such, the Commission ordered a back pay award of 450 hours, with interest, benefits, overtime, night pay differential, attorney’s fees, training for responsible management and other relief.

Reasonable Accommodation

Under the Commission’s regulations, an agency is required to make reasonable accommodation to the known physical and mental limitations of an otherwise qualified individual with a disability, unless the agency can show that accommodation would cause an undue hardship.7 As a threshold matter, a complainant must show that he is an individual with a disability. An individual with a disability is someone who has an impairment which substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.8 In addition, the complainant must show that he is a qualified individual with a disability, that is, that he satisfies the requisite skill, experience, education and other job-related requirements of the position, and can perform the duties with or without reasonable accommodation.9 A reasonable accommodation may consist of modifications or adjustments to the work environment or to the manner or circumstances under which the position is customarily performed that enables a qualified individual with a disability to perform the essential functions of that position.10

The Complainant in Wagner v. Dep’t of Transp.,11 worked as an Aviation Safety Inspector. After undergoing treatment for cancer, he experienced high frequency hearing loss which required him to wear hearing aids. In addition, while at work, he was exposed to noise from two military planes and the noise blew out both of his hearing aids, causing severe trauma and 71 percent hearing loss. Complainant was provided with a microphone and hearing aid through the Department of Labor. Complainant indicated, however, that he needed the cooperation of others at meetings to wear or hold the microphone so that he could hear them. Complainant stated that management resisted using the microphone even after repeated requests to do so. Complainant subsequently experienced further hearing loss, at which time he requested an office that would allow him to use a speaker phone so as not to disturb his co-workers. Complainant was provided with an office without windows which he initially accepted, but later rejected because it made him feel claustrophobic. Complainant requested an office with windows, but the Agency stated that such an office would be located too close to others and the noise from the speaker phone would be disruptive. Complainant then requested a special telephone that would transcribe speech into text. Complainant also requested an alternative job. Both of these requests were denied by Complainant’s Manager. Complainant ultimately filed a formal EEO complaint alleging that the Agency discriminated against him and harassed him on the basis of his disability.

The Agency did not contest that Complainant was a qualified person with a disability. With regard to the claim that Complainant was denied reasonable accommodation, the Commission noted that Complainant made several requests for accommodation, and was ultimately provided with the special telephone that could transcribe speech so that Complainant was able to perform his duties in his cubicle. Thus, the Commission concluded that the Agency provided Complainant with an effective accommodation in the form of the special telephone. Nevertheless, the Commission found that the Agency failed to provide an effective accommodation so that he could hear managers and co-workers. Complainant stated that his Managers refused to hold the microphone during meetings. Further, the Commission noted that since management did not set an appropriate example for how to use the microphone, other co-workers would similarly refuse to hold it. As a result, Complainant was unable to hear and understand what the speakers were saying to him. Thus, although the Agency provided Complainant with the microphone, management did not cooperate to make sure the device was effective, and, as such, the Commission found that Complainant was denied an effective accommodation.

The Commission also determined that Complainant was subjected to hostile work environment harassment, in part because of his disability. The Commission noted that the events concerning the microphone were not only a denial of reasonable accommodation, but also created a hostile environment. As stated, Managers regularly refused to properly place the microphone close to the individual speaking so that Complainant could understand what was being said, and, based on management’s actions, co-workers believed they were not required to properly use the microphone. In addition, two Managers mentioned medical retirement to Complainant. One of the Managers also commented on Complainant’s cough, a remaining side effect of Complainant’s cancer treatments, and used the cough to assert that Complainant had hygiene issues. The Commission concluded that the discriminatory hostile work environment and the denial of reasonable accommodation were sufficiently severe as to result in objectively intolerable working conditions such that Complainant felt compelled to resign. Thus, Complainant proved his claim of constructive discharge. The Agency was ordered, among other things, to offer Complainant reinstatement to his position, with appropriate back pay and benefits, conduct an investigation with regard to Complainant’s claim for damages, and provide EEO training to all employees in the office where Complainant worked.

In Sutter v. Dep’t of Labor,12 the Commission found that the Agency failed to accommodate Complainant for a four-month period in 2003. Complainant had open-heart surgery in January 2002, and subsequently had difficulty working. Complainant requested to work at home full time because her recuperation from the surgery was difficult. Her request was partially granted, and she was initially allowed to work at home full time for several weeks, and then allowed to work at home two days each week. Following the Agency’s reorganization, Complainant was assigned to be the Agency’s internet communications gatekeeper in February 2003, which included responding to messages from the public received through the Agency’s web site and e-mail system. Complainant then submitted a request to either be transferred to an office in Texas, or to work at home full time as a reasonable accommodation. By June 2003, Complainant was reporting to the office on average only one day each week. Complainant filed a formal EEO complaint alleging that the Agency denied her reasonable accommodation. Following a hearing, the AJ issued a decision finding that the Agency denied Complainant reasonable accommodation for the period from February 2003 until June 12, 2003. The Commission subsequently concurred with the AJ’s decision on appeal. The Commission noted that, prior to February 2003, Complainant performed many duties that could not be performed away from her office. Thus, allowing Complainant to work at home full time was not a reasonable accommodation. Following the Agency’s reorganization, however, Complainant could perform all of her duties from home. The Commission stated that the Agency failed to demonstrate why it was necessary for her to be in the office from February 2003 until June 12, 2003, at which time the Agency required her to come in no more than one day each week. In addition, Complainant was allowed to work at home whenever environmental conditions did not allow her to come into the office. The Commission stated that Complainant presented no persuasive evidence that the arrangement after June 12, 2003, was an ineffective accommodation. The Agency was ordered to pay Complainant $10,000 in proven compensatory damages, pay her proven attorney’s fees and costs, and restore annual and sick leave used during the period of discrimination.

The Complainant in Ramos v. Dep’t of Def.,13 was hired as a temporary (one-year appointment) Store Worker, and was responsible for preparing and maintaining stock levels of grocery items. Nine months later, he suffered a heart attack and was required to undergo triple-bypass surgery. The Agency placed Complainant on approved leave during his three month absence. Complainant then returned to work with an indefinite 20 pound lifting restriction. The Agency extended Complainant’s appointment for an additional year, and adjusted his duties to accommodate his lifting restriction. Approximately six months later, Complainant experienced chest pain, and was examined for a possible pulmonary embolism. Complainant’s doctor advised him not to work for five weeks, and restricted him from heavy lifting, and pulling or pushing more than five pounds during that period. After exhausting his leave, Complainant requested Family and Medical Leave Act leave. The Agency, however, terminated Complainant’s appointment, stating that he was unable to perform his duties because of his extended absences. Complainant then filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his disability.

Following a hearing in the matter, the AJ found that Complainant was discriminated against as alleged. The AJ initially determined that Complainant was an individual with a disability based upon the physical limitations he experienced as a result of his heart attack and subsequent complications. The AJ noted that while the Agency initially accommodated Complainant after his surgery by giving him time off, the Agency failed to do so after Complainant’s later setback. On appeal, the Commission affirmed the AJ’s findings. The Commission noted that the evidence showed that Complainant’s request for leave for the pulmonary condition was not the sole consideration in terminating his appointment, and that Complainant’s prior extended absence for his cardiac condition factored heavily into the decision. Complainant’s supervisor testified that he was aware of Complainant’s heart attack and three month absence at the time he proposed Complainant’s removal. In addition, the Agency acknowledged that the decision to terminate Complainant’s appointment was based upon Complainant’s unavailability for work due to his medical conditions. The Commission stated that Complainant had a record of a disability that had previously been accommodated, and, thus, the decision to terminate Complainant was in large part due to his history of disability-related absences. The Commission noted that an employer may not penalize an employee for work missed during leave taken as a reasonable accommodation. In this case, the Commission found that the Agency did just that when it terminated Complainant when he made an additional request for medical leave six months after being accommodated for his heart condition. The Commission rejected the Agency’s assertion that it would have been an undue hardship to accommodate Complainant with additional weeks of leave. The record showed that the Commissary had a large staff, and Complainant’s duties were covered by others after his termination. The Agency was ordered to, among other things, offer Complainant a permanent position as a Store Worker or a substantially equivalent position, with appropriate back pay and benefits, and pay Complainant $4,000 in proven compensatory damages.

According to the record, the Complainant in Bowers v. Dep’t of Def.,14 was born with the four fingers of her left hand on the same ligament, resulting in her having no dexterity or grasping ability with regard to those fingers. Further, Complainant is unable to perform any meaningful lifting with her left hand. Due to her overuse of her right hand to compensate, Complainant experiences bursitis, tendonitis, and neuritis in her right arm. Complainant’s job as a personnel security specialist required a substantial amount of typing, which was difficult for her, and, in August 2002, Complainant’s production standards increased by several units per day. Complainant initially requested several accommodations, including lower production levels and the use of adaptive equipment, in order to keep up with her job responsibilities. The Agency denied Complainant’s request to lower her production quotas, but provided Complainant with a one-handed keyboard. Complainant also applied for a vacant Privacy Act specialist position that involved less typing, and later asked to be reassigned to the position as an accommodation. The Agency denied Complainant’s request for a reassignment, and ultimately offered the Privacy Act specialist position to a former incumbent. After 30 days of using the new keyboard, Complainant’s performance had increased only slightly, and she did not meet her performance requirements. Complainant was placed in a temporary detail position, and ultimately left the agency on disability retirement.

Complainant filed a formal EEO complaint alleging that she was discriminated against when the Agency denied her requests for reasonable accommodation. Following a hearing, an AJ found that the Agency subjected Complainant to disability discrimination, and the Commission affirmed the AJ’s decision on appeal. The Commission determined that Complainant was an individual with a disability, because she is substantially limited in her ability to carry, perform household tasks, and perform fine manipulation. In addition, she is substantially limited in the ability to work in both a class of jobs and a range of jobs requiring the use of two hands or even one healthy hand. Complainant’s physician reported that Complainant has very little motion in the fingers of her left hand, decreased mobility in the joints, and essentially has use of only her right hand, which suffers from overuse. Further, in this case, the Commission concluded that the Agency should have reassigned Complainant to the Privacy Act specialist position, as Complainant established that a vacancy existed for which she was qualified, and she requested reassignment into the position on several occasions. The position was vacant at the time the 30-day trial period for the one-handed keyboard ended, and remained vacant for several months after Complainant was denied the position. The Agency was ordered to, among other things, pay Complainant $26,500 in non-pecuniary damages, and $364.52 in pecuniary damages, and compensate Complainant for 12 hours of annual leave used as a result of the discrimination.

The Complainant in Durr v. Dep’t of the Treasury,15 was diagnosed with prostate cancer, and needed to undergo radiation therapy. On March 22, 2006, Complainant asked to use four hours of sick leave and work four hours at home during this time. Complainant’s supervisor initially approved his request for sick leave, but stated that additional information would be necessary with regard to his request to work at home. Complainant submitted a letter from his doctor stating that he would undergo eight weeks of radiation therapy. The following week, Complainant again made a request for reasonable accommodation. The Agency subsequently referred Complainant’s request to a Federal Occupational Health doctor, who informed the Agency, on May 10, 2006, that Complainant should be allowed to work at home and use sick leave as a reasonable accommodation. On May 25, 2006, Complainant’s supervisor asked for further documentation of Complainant’s treatments, stating that the initial documentation indicated that Complainant was only going to have eight weeks of treatment. Although Complainant complied with the request by submitting a letter from his doctor stating that the treatment was then expected to last 24 months, Complainant’s supervisor denied his request to work at home. Complainant subsequently requested four hours of sick leave and four hours of office work each day during his treatment. Complainant’s supervisor again asked for documentation, and Complainant cited the original medical documentation he had already provided. Thereafter, he was charged with being absent without leave instead of granted sick leave. Complainant filed a complaint of disability discrimination.

On appeal, the Commission noted that the Agency did not contest that Complainant is a qualified individual with a disability. In addition, the Agency found that it was liable for the delay and ultimate denial of a reasonable accommodation to work at home. The Commission determined that the Agency was also liable for the denial of Complainant’s request to use sick leave and subsequent charges of absent without leave. The Commission noted that it was clear from the record that Complainant was continuing to request a reasonable accommodation when he asked to use four hours of sick leave each day due to his cancer treatments. Complainant’s choice not to request reconsideration of his initial request to work at home did not absolve the Agency of its duty under the Rehabilitation Act to accommodate Complainant when he later requested sick leave. Further, the Commission stated that the medical documentation that Complainant initially provided was sufficient, as it explained his diagnosis, prognosis, side effects of the treatment, and an estimate that the treatments would last two years. The Agency was ordered to conduct a supplemental investigation with regard to Complainant’s entitlement to compensatory damages, remove the absent without leave charges from all records, and compensate Complainant for the time he was charged with being absent without leave as a result of the denial of accommodation.

In Blount v. Dep’t of Homeland Sec.,16 Complainant, an Immigration Status Verification Officer, filed a formal complaint alleging discrimination on the basis of his disability. Specifically, Complainant stated that, after he had a stroke, the Agency failed to act on his request to work at home as a reasonable accommodation. Complainant made his requests by telephone. During the investigation of his complaint, Complainant asserted that the Agency’s actions resulted in his inability to work, and he sought disability retirement. On appeal, the Commission initially found that Complainant was a qualified individual with a disability. Complainant requested the reasonable accommodation of working at home, at least part time, while undergoing rehabilitation. One management official attempted to assist Complainant in pursuit of a reasonable accommodation, but was told that the matter was not his concern and that there was no work for Complainant. That official testified, however, that there were many tasks Complainant could have performed at home which would have aided in the mission of the Agency, and that it was possible for Complainant to access the Agency’s computer databases from home. Complainant also stated that he would have been able to access the Agency’s computer network from home and perform some work functions.

The Commission noted that Complainant’s requests for accommodation were summarily denied by the Agency before it requested any medical documentation. The Commission found that the Agency made no attempt to determine what Complainant’s limitations were or which of his essential job functions could be modified, and made no attempt to explore the possibility of other potential accommodations. Instead, the Agency encouraged Complainant to seek disability retirement. Agency officials testified that they were “either unaware or untrained” as to their responsibilities under the Rehabilitation Act. The Commission concluded that the Agency failed to make a good faith effort to reasonably accommodate Complainant. The Agency was ordered to reinstate Complainant to his position, with appropriate back pay, and pay Complainant $200,000 in compensatory damages.

In Hamblin v. Dep’t of Justice,17 the Commission affirmed the AJ’s finding that the Agency discriminated against Complainant on the basis of her disability when it failed to provide her with reasonable accommodation and ultimately terminated her from employment. According to the record, Complainant had previously been granted an early work schedule so that she could attend medical appointments associated with her condition. In 2002, however, Complainant was assigned to a new supervisor who revoked her flexible schedule, and returned her to the later, regular schedule. Subsequently, Complainant was rated “Does Not Meet Expectations” on her annual performance appraisal, and ultimately terminated. Following a hearing, the AJ found that Complainant was subjected to disability discrimination. On appeal, the Commission noted that the Agency did not contest the AJ’s finding that Complainant was an individual with a disability. Further, the Commission noted that the evidence showed that Complainant performed the duties of her position in a satisfactory manner before her new supervisor revoked her accommodation. The record showed that management at Complainant’s facility was aware of Complainant’s condition and her need to work an early schedule to avoid exhaustion and concentration problems, and attend doctor’s appointments. The Commission determined that the Agency did not prove that providing Complainant with an early work schedule would have been an undue hardship, especially in light of the fact that the Agency granted her an early work schedule for over three years. Finally, the Commission concurred with the AJ’s finding that the Agency’s failure to provide Complainant with reasonable accommodation resulted in her termination. The Agency was ordered to, among other things, make an unconditional written offer to Complainant to place her into her former position with an early work schedule, pay Complainant appropriate back pay, and pay Complainant $10,000 in proven compensatory damages.

Disparate Treatment

In Estate of Roop v. Dep’t of Homeland Sec.,18 the Commission found that the Agency discriminated against Complainant on the basis of his disability when it removed him from a detail position. According to the record, Complainant was hired by the Agency as a Transportation Security Screener, and subsequently received a light duty assignment almost two years later. In September 2004, Complainant applied and was selected to be a TSA Approved Instructor. In February 2005, Complainant began performing Screener duties for two hours in the mornings as part of an Agency requirement that all employees be on the screening floor during specified hours. Complainant was able to perform the screener duties in this limited context, and spent the remainder of his time working as an Instructor. Complainant’s performance evaluation reflected that he was performing his job well, and his supervisors were satisfied with his work. In September 2005, Complainant was informed that he was in a light duty status, and, since the Agency was not making light duty assignments at that time, Complainant was not permitted to work. Complainant contacted a Human Resources Specialist to explain that, as an Instructor, he did not require light duty work, but was informed that his Instructor position was immaterial and he could not return to the screening floor. Complainant did not return to work and ultimately applied for disability retirement. Complainant also filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his disability.

On appeal, the Commission initially rejected the Agency’s argument that it did not have to accommodate Complainant because he could no longer meet the statutory requirements of the Transportation Security Screener position. The Commission noted that Complainant was not challenging a statutorily mandated qualification standard. Complainant was working as an Instructor and not a Screener, and there was no evidence he was unable to perform his Instructor duties. In fact, the record showed that he was successfully performing those duties, and did not need any accommodation. Further, while the Agency asserted that the Instructor duties were not part of a permanent position, but instead constituted a temporary detail assignment, the record contained substantial evidence that the position was in fact full time and long term. Complainant had performed the duties for approximately one year, and a Supervisor stated that Instructors were in such high demand that individuals were not removed from that position after one year. As justification for its actions, the Agency stated that it was merely enforcing the 180 day limitation on light duty assignments. The Commission noted, however, that the Agency’s argument assumed that Complainant was a Screener and not an Instructor. According to the record, Complainant did not renew his request for light duty after being chosen as an Instructor, and neither his Supervisor nor the Screening Manager were aware of Complainant’s alleged light duty status at the time of the incident in question. Thus, the Commission concluded that the Agency discriminated against Complainant when it removed him from his Instructor position. The Agency was ordered, among other things, to pay Complainant an appropriate amount of back pay, as well as $150,000 in proven compensatory damages.


Footnotes

1 29 U.S.C. § 791, et seq.

2 29 C.F.R. §§ 1630.13(b), 14(c).

3 Id.

4 EEOC Appeal No. 0120073270 (July 9, 2010), request for reconsideration denied EEOC Request No. 0520100533 (November 18, 2010).

5 EEOC Appeal No. 0720080050 (December 8, 2009).

6 EEOC Appeal No. 0720070058 (November 13, 2009), request for reconsideration denied EEOC Request No. 0520100159 (May 28, 2010).

7 29 C.F.R. § 1630.9, EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (revised October 17, 2002).

8 29 C.F.R. 1630.2(g).

9 29 C.F.R. § 1630.2(m).

10 29 C.F.R. § 1630.2(o)(ii).

11 EEOC Appeal No. 0120103125 (December 1, 2010).

12 EEOC Appeal No. 0120080937 (October 22, 2010).

13 EEOC Appeal No. 0720090055 (April 12, 2010), request for reconsideration denied EEOC Request No. 0520100358 (September 29, 2010).

14 EEOC Appeal No. 0720070012 (March 22, 2010).

15 EEOC Appeal No. 0120080078 (February 19, 2010).

16 EEOC Appeal No. 0720070010 (October 21, 2009), request for reconsideration denied EEOC Request No. 0520100148 (April 16, 2010).

17 EEOC Appeal No. 0720070041 (September 3, 2009), request for reconsideration denied EEOC Request No. 0520100012 (March 31, 2010).

18 EEOC Appeal No. 0720090056 (October 21, 2010).