EEOC Seal

U.S. Equal Employment Opportunity Commission



 Digest Seal The DIGEST Of Equal Employment Opportunity Law


Volume XXV, No. 1

Office of Federal Operations

Winter 2014


Inside

Selected EEOC Decisions on:


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

Carlton M. Hadden, Director, OFO
Robert Barnhart, Acting Director, OFO's Special Services Staff
Digest Staff
Editor: Robyn Dupont
Writers: Jessica Brittany Bingham, Robyn Dupont, Wanda L. Jones, Joseph M. Kirchgessner, Ebbie Yazdani

The Digest is now available online through EEOC's homepage at www.eeoc.gov/federal/digest/index.cfm.


(The Commission will now redact Complainants' names when it publishes decisions. There will be no change with regard to the way in which the Commission communicates its decisions to the parties. This change was made to address privacy concerns and to ensure consistency with the Commission's approach in the rest of its enforcement work and the investigations of complaints.- Ed)

SELECTED EEOC DECISIONS

Compensatory Damages

(The decisions below are a selected sampling of recent awards of compensatory damages. See, also, "Findings on the Merits," and "Remedies" this issue. - Ed.)

$100,000 Awarded for Sexual Harassment. Following a hearing, an Administrative Judge (AJ) found that the Agency subjected Complainant to sexual harassment, and awarded Complainant, among other things, $100,000 in non-pecuniary compensatory damages. The Agency filed an appeal with regard to the award of damages. The Commission noted that the record included testimony from Complainant, two co-workers, and Complainant's doctor regarding the effects of the harassment. Complainant stated that the harassment adversely affected her health, her sleep, and her attitude, and caused her anxiety, stress, chest pain, shortness of breath, and heart palpitations. Complainant's doctor testified that he discussed stressors at work with Complainant and prescribed medication for anxiety and high blood pressure. Complainant's co-workers confirmed the description of her symptoms. While Complainant had previously been diagnosed with depression and heart disease, the record showed that the discrimination significantly worsened Complainant's symptoms. The Commission concluded that the AJ's award was not monstrously excessive and was consistent with awards in cases of involving similar duration and severity. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0720130010 (October 31, 2013).

Dismissals

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

Dismissal of Complaint for Mootness and Untimely EEO Counselor Contact Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when he was denied reasonable accommodation and required to obtain a commercial driver's license. The Agency dismissed the claim concerning reasonable accommodation on the grounds that the matter was moot since Complainant's request for accommodation had been approved. The Agency also found that Complainant knew that his position description had been changed to require a commercial driver's license in December 2012, but did not initiate EEO counseling until April 2013, which was beyond the applicable limitation period. On appeal, the Commission reversed the Agency's decision. The Commission was unable to find that the Agency's actions eradicated the effects of the alleged discrimination such that there was no reasonable expectation that the alleged violation would recur. While the record contained a letter from an Agency Supervisor stating that Complainant would receive a new position description that would not require a commercial driver's license, the record did not contain a copy of the new position description, and Complainant asserted that he has not been given any information about the new position description. Further, the crux of Complainant's claim was that he was denied reasonable accommodation when the Agency changed his position description, and Complainant alleged that he was still working under that position description when he initiated EEO contact. The Commission stated that the failure to provide reasonable accommodation constitutes a violation each time the employee needs it, and, as such, Complainant's EEO contact was timely. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120132839 (January 8, 2014).

Dismissal of Complaint Proper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it gave him an outdated position description, and a "minimally successful" performance appraisal. The Agency dismissed the complaint on the grounds that Complainant raised the matter in a negotiated grievance procedure that allowed for claims of discrimination to be raised. On appeal, the Commission affirmed the Agency's dismissal. The record included a copy of Complainant's grievance regarding his job description and appraisal which was filed almost three months prior to the EEO complaint. While Complainant asserted that he did not pursue his grievance under the portion of the collective bargaining agreement which deals with discrimination claims, the Commission noted that the requirement that an individual elect to raise claims of discrimination in either the grievance or EEO process exists irrespective of whether the individual actually raised an issue of discrimination. Therefore, the Agency properly concluded that Complainant elected to adjudicate the matter in the grievance process. Complainant v. Dep't of Hous. & Urban Dev., EEOC Appeal No. 0120132534 (January 9, 2014).

Dismissal of Complaint as Stating Same Claim Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of sex, age and prior EEO activity when she was "subjected to extreme abuse by management and co-workers" and forced to retire. The Agency dismissed the complaint for stating the same claim as that raised in a prior EEO complaint. On appeal, the Commission noted that in order to be dismissed as the "same claim," the present complaint must involve an identical matter as that raised in a prior complaint. In this case, Complainant's prior complaint raised allegations of discriminatory harassment and hostile work environment, while the current complaint concerned Complainant's forced retirement. The Commission concluded that the complaints were not identical in time, place, incident and parties, and, therefore, the instant complaint did not state the same claim that was pending or had been decided by the Agency or Commission. The matter was remanded for further processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131740 (January 10, 2014).

Dismissal of Complaint Improper. Petitioner filed a formal EEO complaint alleging, among other things, that the Agency discriminated against him when it issued him a Letter of Warning in May 2012. In a prior decision, the Commission reversed the Agency's dismissal of the complaint finding that Petitioner timely contacted an EEO Counselor on June 21, 2012, with regard to the Letter of Warning. The Agency subsequently notified the Commission that it would not comply with the order to resume processing the complaint because the matter had been settled in the grievance process on March 14, 2013. Petitioner then filed a petition for enforcement of the Commission's order. The record showed that Petitioner filed a grievance on the Letter of Warning, and the grievance was settled on June 7, 2012. Petitioner, who was not represented by an attorney, stated that he told the Agency he intended to pursue his retaliation claim in the EEO process. The grievance settlement provided that Petitioner "withdraws any and all pending complaints, including EEO complaints, grievances, or other actions." The Commission found that the language of the settlement agreement applied to all "pending" EEO complaints, and Petitioner had no pending EEO complaints or requests for EEO counseling at the time he signed the agreement. The Commission noted that the agreement contained no language barring Petitioner from filing a future EEO complaint. Therefore, the Agency was ordered to process the underlying complaint. Petitioner v. U.S. Postal Serv., EEOC Petition No. 0420130014 (December 26, 2013).

Complaint Improperly Dismissed for Failure to Cooperate. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it placed him in off-duty status and issued him a suspension. The Agency notified Complainant of a procedural defect with the complaint and asked him to resubmit a copy of the formal complaint with his signature within 15 days. When Complainant failed to provide a signed copy of the complaint, the Agency dismissed the matter for failure to cooperate. On appeal, Complainant noted that he had limited language skills. The record showed that although the formal complaint form was not signed by Complainant, the information submitted with the complaint included a document bearing Complainant's signature. The Commission stated that it appeared Complainant was not clear as to how the complaint was incomplete and did not understand that it only required his signature. The Commission found no evidence of a clear delay or contumacious conduct by Complainant. Therefore, given Complainant's obvious confusion in the matter, the Commission concluded that justice was not served by dismissing the complaint. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122608 (December 20, 2013).

Complaint Improperly Dismissed. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of disability when it required him to complete medical tests ordered by its Occupational Medical Director every six months during the period from June 2011 through May 31, 2012. The Agency dismissed the complaint for failure to state a claim and failure to timely contact an EEO Counselor. The Agency asserted that Complainant was not aggrieved by the actions and that, since he reasonably suspected discrimination from June 2011 through March 2012, his contact with the Counselor on May 29, 2012 was untimely. On appeal, the Commission reversed the Agency's decision. Complainant was asserting that, as an employee, he was being subjected to medical inquiries and examination. The Commission stated that there are significant restrictions on an employer's freedom to make medical inquiries, and the employer must show the inquiry is job-related and consistent with medical necessity. Therefore, Complainant showed an injury or harm to a term, condition, or privilege of employment. Further, Complainant was subjected to a policy that required him to undergo medical testing every six months, and, as such, was alleging that he was subjected to a present ongoing violation. The Commission concluded that his contact with the EEO Counselor was timely. Complainant v. Dep't of Energy, EEOC Appeal No. 0120131126 (December 19, 2013).

Complaint Improperly Dismissed. Complainant, a former Agency employee, filed a formal EEO complaint alleging that the Agency discriminated against her when it did not return her to work. The Agency dismissed the complaint on the grounds that it stated the same claim as that raised in an earlier complaint. The evidence in the record showed that the earlier complaint concerned the Agency's failure to accommodate Complainant and her removal from her position. The Commission found that the instant complaint, however, addressed a different matter, that is Complainant's reinstatement to work approximately nine months later. Complainant alleged that other employees were returned to work while she was not. Thus, the matter was remanded to the Agency for further processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120122743 (December 11, 2013).

Complaint Improperly Dismissed as Being Moot. Complainant filed a formal EEO complaint alleging that the Agency retaliated against him for prior EEO activity. The Agency framed the complaint as including only an allegation regarding an offensive and racially motivated statement in Complainant's annual performance appraisal. The Agency dismissed the complaint as moot, stating that management issued a revised narrative to Complainant's performance appraisal which did not include the offensive statement, and assured that such statements would not be placed in future appraisals. On appeal, the Commission noted that Complainant asserted this was not the first time that the Manager in question made racist statements in front of him. In addition, during EEO counseling and in his formal complaint, Complainant indicated that an Agency Attorney had been contacting various Managers to let them know of Complainant's EEO activity. Complainant claimed that these individuals were not involved in his prior complaints, and the Attorney was trying to block him from future job opportunities. The Commission noted that the Agency did not address the matter relating to the Attorney's conduct. Therefore, the Commission could not find that there was no reasonable expectation that the alleged violation would recur. Complainant v. Nat'l Aeronautics & Space Admin., EEOC Appeal No. 0120130895 (December 5, 2013).

Dismissal of Complaint Improper. Complainant contacted an EEO Counselor on March 21, 2012, and subsequently filed a formal complaint alleging that the Agency discriminated against her and subjected her to harassment. Complainant stated, among other things that, beginning in 2006, she was denied Light Duty and other accommodations, and was given an Official Discussion regarding sick leave use on March 9, 2012. The Agency determined that the complaint comprised six claims. The Agency then dismissed five claims for failure to timely contact an EEO Counselor, and two claims for failure to state a claim. On appeal, the Commission initially found that the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment. Complainant asserted that she was subjected to continuous harassing and intimidating conduct by her Supervisors due to her medical conditions and requests for accommodation, and the Commission concluded that the matters, taken together, stated an actionable harassment claim. Further, at least one alleged incident occurred within the 45-day period preceding Complainant's initial EEO contact. The Commission has previously held that because the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable as long as at least one incident occurred within the filing period. Therefore, the entire harassment claim was remanded for processing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120123511 (November 27, 2013).

Complaint Improperly Dismissed for Abuse of Process. Complainant filed a formal EEO complaint in May 2012 alleging that the Agency discriminated against her when it refused to investigate an incident with a co-worker, placed her in a non-duty status, denied her reasonable accommodation, and issued her a Letter of Warning. Following an investigation, Complainant requested an administrative hearing. The AJ, however, dismissed the complaint for abuse of process, stating that Complainant had filed 14 prior complaints and failed to establish discrimination in any of those matters. Further, the AJ noted that the matters at issue were part of a union grievance. On appeal, the Commission found that the AJ erred in dismissing the instant complaint. The Commission noted that filing numerous complaints alone is not a sufficient basis for dismissal. While Complainant filed 14 complaints, she did so over a 17-year period, and the Agency did not show that the complaints were frivolous, particularly since the Commission had found in Complainant's favor in the past. The Commission further noted that Agency employees may file both a union grievance and an EEO complaint on the same matter. Therefore, Complainant was merely exercising her legal rights by filing both a grievance and an EEO complaint. The Agency did not provide any evidence that Complainant's complaints were meant to retaliate against it or to overburden the EEO complaint system. Therefore, the matter was remanded for a hearing. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132532 (November 19, 2013).

Dismissal of Complaint Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of sex when it strictly applied uniform rules against him but not against comparative female employees, and subjected him to a hostile work environment. The Agency dismissed the complaint as stating the same claim as that raised previously and for failure to state a claim. On appeal, the Commission reversed the Agency's dismissal. The Commission found that while Complainant filed prior EEO complaints, the instant complaint covered a different time period, made allegations against different parties, and included a claim of hostile work environment. Further, the disparate application of a dress code stated a claim under Title VII. Thus, the Agency improperly dismissed Complainant's complaint. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132345 (October 31, 2013).

Findings on the Merits and Related Decisions

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

Under the Rehabilitation Act

Discriminatory Qualification Standard. Complainant, a Mail Processing Clerk, filed an EEO complaint alleging, among other things, that the Agency discriminated against her on the basis of disability when it did not provide her with a reasonable accommodation for a Sales, Services, and Distribution Associate (SSDA) position. Complainant was restricted to lifting no more than 10 pounds. The Agency awarded Complainant the position, but requested that she provide a medical certification that she was fully able to perform all the duties of the position. The Agency stated that, alternatively, Complainant could contact the Reasonable Accommodation Committee Coordinator if she felt she could perform the essential functions with accommodation. The Reasonable Accommodation Committee ultimately concluded that Complainant was not a qualified individual with a disability. In its final decision finding that Complainant failed to prove that she was discriminated against as alleged, the Agency found that Complainant was not an individual with a disability because she failed to provide examples of how her lifting restriction affected a major life activity outside of the Agency. In addition, the Agency found that Complainant was not a qualified individual with a disability because an essential function of the position was to be able to lift objects weighing up to 70 pounds.

On appeal, the Commission reversed the Agency's final decision with respect to the SSDA position. The Commission found that Complainant was an individual with a disability. Specifically, the Commission determined that Complainant was substantially limited in the major life activity of lifting because she was restricted to lifting no more than 10 pounds. The Commission also found that Complainant was a qualified individual with a disability. The Commission determined that the 70 pound lifting requirement imposed by the Agency was not an essential function of the position, but rather a qualification standard that the Agency established to ensure that employees could perform the essential function of collecting and distributing mail. In addition, the Commission found that there was no dispute about whether Complainant was able, in some form, to perform that essential function. The Commission stated that the Agency used a discriminatory qualification standard that was not job-related and consistent with business necessity. The evidence in the record did not support a finding that the Agency's 70 pound lifting requirement was carefully tailored to measure Complainant's actual ability to perform the essential function of collecting and distributing mail. The Commission concluded that Complainant was qualified to perform the SSDA position and that the Agency, by utilizing a qualification standard that was not job-related and consistent with business necessity which screened out Complainant, discriminated against Complainant in violation of the Rehabilitation Act. The Agency was ordered, among other things, to retroactively place Complainant in the position, pay Complainant front pay and back pay, and undertake a supplemental investigation to determine Complainant's entitlement to compensatory damages. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120080613 (December 23, 2013).

Denial of Reasonable Accommodation Found. Complainant, a hearing impaired Office Automation Assistant, filed a formal complaint alleging that the Agency discriminated against her on the basis of disability when she was not provided an interpreter for two last-minute meetings, one scheduled meeting, and two training classes, and when she was not provided the name or arrival time for an interpreter for a Command Training Day Event. The Agency issued a final decision after Complainant failed to request a hearing within the required time frame. In its decision the Agency concluded that management attempted to accommodate Complainant by providing interpreters, but due to administrative errors and/or problems locating Complainant's office, interpreters were sometimes late, or they did not show up at all. Although some of management's attempts to provide an interpreter were not successful, the Agency found that Complainant had not been denied reasonable accommodation or discriminated against as alleged.

On appeal, the Commission concluded that Complainant had been denied reasonable accommodation when the Agency failed to provide interpreting services on three occasions, including the scheduled meeting and two training classes. The Commission has held that for severely hearing impaired employees who can sign, reasonable accommodation, at a minimum, requires providing an interpreter for safety talks, discussions on work procedures, policies or assignments, and disciplinary actions. In this case, the Agency conceded that there were errors in obtaining an interpreter for Complainant on the three occasions. The Commission found that, as a result of the Agency's failure to secure interpreters, Complainant was unable to hear or fully participate in meetings and training related to her duties, which was a benefit and privilege of employment. There was no evidence that providing an interpreter would have been unduly costly or disruptive to the Agency. The Agency was ordered, among other things to provide Complainant with an interpreter for all future mandatory training and meetings, and investigate her claim for compensatory damages. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120114151 (November 7, 2013).

Disability Discrimination Found. Complainant accepted a position approximately 65 miles from his home. Complainant stated that his co-workers harassed him and the harassment aggravated his medical conditions and inhibited his ability to learn and perform his job. Complainant told his first-level Supervisor about the harassment but was told that nothing could be done. Complainant requested a transfer to an office closer to his home as a reasonable accommodation. The Agency denied Complainant's request for accommodation and ultimately terminated him. Complainant filed an EEO complaint in which he alleged that that he was discriminated against based on disability when he was subjected to a hostile work environment, denied reasonable accommodation, and terminated from his position as a Claims Representative.

Following a hearing, the AJ found that the Agency discriminated against Complainant as alleged, and the Commission affirmed the AJ's findings on appeal. The AJ found that Complainant was a qualified individual with a disability, as he was substantially limited in his abilities to concentrate and think, but had been able to perform the essential functions of the position prior to the commencement of the harassment. The Agency further failed to engage in the interactive process and instead blamed Complainant for the workplace problems. The Commission noted that disability determinations by the Department of Veterans Affairs and Social Security Administration were not determinative when deciding whether Complainant was a qualified individual with a disability. The Commission further affirmed the AJ's finding that Complainant was subjected to a hostile work environment based on his disability when his Supervisor and co-workers mocked his inability to quickly pick up aspects of the job and generally treated him poorly. She also found that the Agency failed to reasonably accommodate Complainant, and that the harassment and failure to accommodate resulted in his termination. The Commission stated that Complainant's Supervisors subjected him to harassment when they failed to provide him with an adequate mentor, placed derogatory observations in his personnel file, threatened to terminate his employment and ultimately terminated him. Therefore, the harassment culminated in a tangible employment action. The Agency was ordered, among other things, to reinstate Complainant to his position or a substantially equivalent position, and pay him $40,000 in proven compensatory damages. Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0720110030 (November 4, 2013).

Per Se Violation of Rehabilitation Act Found. Complainants filed formal EEO complaints alleging that the Agency discriminated against them on the basis of disability when it included confidential medical information in an Agency database. The Agency ultimately investigated the matters and issued final decisions analyzing the issues under a disparate treatment theory of discrimination. The Agency concluded that Complainants failed to prove their allegations. On appeal, the Commission found that the Agency improperly analyzed Complainants' complaints. The Commission noted that the Agency's obligation to keep certain medical information of its employees confidential applies to all employees regardless of disability status, and documentation or information relating to an individual's diagnosis must be treated as confidential except in certain limited circumstances. Complainants stated that their medical information was improperly accessed and available in the database to any employee with access, including all supervisors and temporary supervisors, and could be openly displayed on computer screens where other non-management employees could see it. The Family Medical Leave Coordinator indicated that the database contained information such as "fatigue," "sleep disorder," "wrist surgery," and "back." Further, the Coordinator was unable to locate specific instructions for including or not including medical information in the database. Another Agency official stated that changes were subsequently made so that only certain employees had access to the database. The Commission found that these statements did not disprove that a violation of the Agency's responsibilities under the Rehabilitation Act occurred with regard to the recordkeeping of confidential medical information at the time alleged by Complainants. Thus, the Commission concluded that the Agency discriminated against Complainants. The Agency was ordered, among other things, to investigate Complainants' claims for compensatory damages, and provide appropriate training to those employees responsible for improperly releasing Complainants' confidential medical information. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120123252 (October 24, 2013); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120133064 (November 1, 2013); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132667 (November 1, 2013).

Under Title VII

Sex Discrimination Found. Complainant alleged, among other things, that the Agency discriminated against her on the basis of sex when it placed her in an off-duty, non-payment status, and issued her a 14 day suspension. The Agency stated that there was a dispute between Complainant and a Supervisor (SDO 2), and the Agency charged Complainant with making a verbal threat against SDO 2. The Agency dismissed the issue concerning Complainant's placement in non-duty status for failure to timely initiate EEO counseling, and ultimately found no discrimination with regard to the suspension.

On appeal, the Commission initially reversed the Agency's dismissal of the first claim, finding that Complainant contacted the EEO Counselor on the same day she learned another employee (Comparator 1) engaged in similar conduct but was not sent home. The Commission noted that the two issues were intertwined, and there was sufficient record evidence to make determinations on the merits on both issues. The Commission then concluded that Complainant was discriminated against based on her sex when she was placed in non-duty status and issued a suspension. In reaching this conclusion, the Commission relied on evidence in the record showing that Comparator 1, a similarly situated male employee who had engaged in threatening behavior, was neither placed in off-duty status, nor suspended. Further, contrary to the statements of the management official responsible for the differing treatment, the record showed that Comparator 1 engaged in an incident where the supervisor actually felt threatened, whereas the record suggested that SD2 did not feel threatened by Complainant's behavior. Thus, the Commission concluded that the reasons articulated by the Agency for the actions were a pretext for sex discrimination. The Agency was ordered, among other things, to expunge the actions from Complainant's personnel file, pay Complainant appropriate back pay and benefits, and investigate her claim for compensatory damages. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132572 (December 11, 2013).

Agency Liable for Racial Harassment. Complainant, who is African-American, filed a formal EEO complaint alleging, among other things, that he was subjected to harassment based upon his race. Specifically, Complainant stated that two Caucasian employees in his work area repeatedly wore tee shirts featuring the Confederate flag several times per month over a nine month period, management took no action despite receiving complaints about the shirts, and management exacerbated the situation. Complainant stated that the Confederate flag has been widely used as a symbol of racism against African Americans. An AJ ultimately issued a decision without a hearing finding that the Agency was not liable for the harassment, and Complainant appealed the matter to the Commission.

On appeal, the Commission noted that the Agency adopted the AJ's finding that Complainant was subjected to racial harassment, so the only issue before the Commission was whether it was proper to grant summary judgment to the Agency on the issue of imputing liability. In the case of co-worker harassment, an Agency is responsible for acts of harassment in the workplace where the Agency (or its agents) knew or should have known of the conduct, unless it can be shown that it took immediate and appropriate corrective action. The Commission agreed with the AJ that neither party identified material facts in dispute, and the record was fully developed such that the matter was ripe for a decision by summary judgment. Here, the Union President informed the Postmaster that some employees found the shirts offensive and requested that management take action to prohibit the shirts in the workplace. While the Postmaster stated that he directed a subordinate employee to conduct a stand-up talk for all employees concerning workplace attire, there was no mention of Confederate flag symbols and employees were told only to refrain from wearing revealing clothing or clothing with "political" messages. Therefore, the undisputed evidence showed that management failed to take any action when it was first notified of the concern to prohibit the wearing or displaying of the Confederate flag when it was first notified of the concern. The Union President subsequently sent a letter to the Postmaster regarding the matter, and witness statements indicated that the Postmaster examined Clerk 1, who was wearing the shirt, and let him know, as well as another witness, that there was "nothing wrong" with wearing the shirt. The Commission found that the Postmaster's actions exacerbated the situation. Subsequently, the Postmaster did not take any action to address the issue for nearly two months, until Complainant filed a union grievance. Thus, the Agency failed to meet its burden of establishing its affirmative defense against liability and the Commission concluded that the Agency was liable for harassment. The Agency was ordered, among other things, to investigate Complainant's claim for damages, issue a written directive prohibiting employees from wearing or displaying Confederate symbols in the workplace, and conduct training for all employees at the facility. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132144 (November 1, 2013).

Retaliation

Per Se Retaliation Found. Complainant filed a formal complaint alleging, among other things, that the Agency discriminated against her in reprisal for prior protected EEO activity when the District Superintendent (DS) made certain comments. Specifically, the DS stated in a discussion regarding administrator responsibilities for supervisors, that: "EEOs are crap. Here's what happens. They won't win because there's nothing to support it. They'll drop it because they don't have evidence and don't want to spend money for a lawyer. Senior citizens are afraid to retire, economically afraid. EEO people are crazy people. Don't be afraid of EEO's. They'll go away." Following an investigation, an AJ issued a decision without a hearing in favor of the Agency. The AJ found that the DS's comments were broad statements made to assure managers that they could take disciplinary action, and her comments regarding the EEO process were made not to discourage potential complaints but to empower managers to take action without fear of an EEO complaint.

On appeal, the Commission found that the AJ erred in finding that Complainant failed to establish that she was subject to unlawful retaliation. The Commission stated that comments which, on their face, discourage an employee from participating in the EEO process violate the letter and spirit of EEOC's regulations and evidence a per se violation of the law. The Commission further stated that Agencies have a continuing duty to promote the full realization of equal employment opportunity, and that this duty extends to every aspect of Agency personnel policy and practice. The Commission noted that the logical interpretation of DS's comments was that a manager should not be afraid of an EEO complaint filed by an employee, and could feel free to take whatever action they wanted because any allegation of discrimination would simply "go away" having not been proven because the complainant would not have the evidence or resources to proceed. The Commission found that DS's statements were reasonably likely to deter Complainant or any of the other managers from engaging in the EEO process. The Agency was ordered, among other things, to investigate Complainant's claim for damages and conduct training for DS. Complainant v. Dep't of Def., EEOC Appeal No. 0120132212 (November 8, 2013).

Retaliation Found with Regard to Nonselection. Complainant alleged, among other things, that the Agency discriminated against her in reprisal for prior EEO activity when it did not select her for a supervisory position. Complainant had previously been employed by the Agency and had named the selecting official in the instant complaint (SO) as a responsible management official in her prior EEO case. The SO changed the position description such that the vacancy announcement for the first time required that the successful candidate possess a Professional Engineer (PE) certificate. "Indian Preference" was also applicable to the vacancy announcement. The Agency was aware that Complainant was a Native American candidate who did not possess a PE certificate. Complainant was one of two candidates to apply for the position, but was rated as non-qualified because she did not meet the PE certificate requirement. The Agency selected the other candidate who had no prior EEO activity.

After a hearing, an AJ found that Complainant established that the Agency's non-discriminatory reasons for her non-selection were pretext to mask retaliatory animus. The AJ noted that the SO unilaterally changed the requirements for the position without following Agency policy, knowing that Complainant would apply for the position. The Commission affirmed the AJ's findings on appeal. The Commission found that the record clearly established that the SO changed the position in order to intentionally exclude Complainant from the position. Thus, the AJ's findings were supported by substantial evidence. The Agency was ordered, among other things, to offer Complainant the position with appropriate back pay and benefits, and pay her $25,000 in proven compensatory damages. Complainant v. Dep't of the Interior, EEOC Appeal No. 0720120037 (October 31, 2013).

Remedies

(See also "Findings on the Merits" in this issue. - Ed.)

Back Pay Discussed. Petitioner worked for the Agency as an Aviation Security Officer (ASO). All ASOs worked under a contract that stipulated payment per assignment without any minimum guarantee of work. In a prior decision, the Commission found that the Agency retaliated against Petitioner when it informed her that it no longer needed her services. The Agency was ordered to retroactively reinstate Petitioner, and pay her back pay. The Agency was ordered to calculate back pay based upon the average salary earned by ASOs during the applicable time period. Petitioner subsequently submitted a petition for enforcement indicating that the Agency failed to properly calculate back pay. The Commission granted the petition for enforcement, stating that in using the average ASO in this case, it intended for the Agency to calculate an hourly amount of back pay that accounted for some speculation given the uncertainty of the number of hours Petitioner would have worked. The Agency's consideration of all employees in its average calculation reduced Petitioner's award and was not in compliance with the Commission's order. The Commission found that the Agency should have used only similarly situated employees when calculating the average salary. The Commission stated that the Agency's calculation should include those individuals who, like Petitioner, sought out work consistently and accepted regular assignments, and the Agency should have included all benefits owed including any pay raises, overtime hours and per diem amounts Complainant would have received absent the discrimination. Petitioner v. Dep't of Justice, EEOC Petition No. 0420130021 (December 17, 2013).

Agency Improperly Calculated Back Pay. An AJ found that the Agency discriminated against Petitioner on the basis of his disability when it placed him off work without pay for an indefinite period of time. The Commission affirmed the AJ's finding of discrimination on appeal, and ordered the Agency, among other things, to pay Petitioner back pay from the time he stopped receiving pay from the Agency until he began receiving Social Security disability benefits in August 2007. Petitioner subsequently filed a petition for enforcement with regard to the issue of back pay, and the Commission found that the Agency failed to comply with its prior order. The order expressly adopted the AJ's award of back pay which obligated the Agency to calculate back pay for a finite period. The Agency did not previously contest the award, and, rather than comply with the order, calculated back pay from the time Petitioner stopped working, until May 4, 2006, the effective date of his retirement. The Agency had more than three years following Petitioner's effective date of retirement and receipt of Social Security disability benefits to determine and submit for the record precisely when Petitioner was and was not eligible for payment, but the Agency did not do so. Therefore, the Commission concluded that the Agency waived its right to challenge the period of back pay. The Commission also found that the case law cited by the Agency concerning back pay was not persuasive, because in those cases there was a lack of evidence concerning a constructive discharge. In the instant case, the essence of the AJ's finding of discrimination was that Petitioner was discriminatorily prohibited from working and being paid for an indefinite period, which forced him to retire. Petitioner v. Dep't of Homeland Sec., EEOC Appeal No. 0420130006 (October 30, 2013).

Sanctions

Dismissal of Hearing Request as Sanction Was Proper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of sex and disability. Following an investigation, Complainant requested an administrative hearing, but the AJ ultimately denied the hearing request on the grounds that Complainant failed to prosecute her complaint. The Agency subsequently issued a final decision finding no discrimination. On appeal, the Commission found that the AJ did not abuse his discretion in dismissing Complainant's hearing request as a sanction for contumacious conduct and remanding the matter to the Agency. The AJ notified the parties that the failure to respond to discovery could result in a sanction, yet Complainant failed to provide any prehearing submissions. Complainant also failed to respond to the Agency's Order to Show Cause. The Commission found that Complainant's assertion that she did not receive the initial paperwork from the AJ was not supported by the record since Complainant did submit a designation of representative form which was part of the paperwork. Complainant also did not challenge the AJ's finding that she failed to respond to the Show Cause Order. Therefore, the Commission concluded that the dismissal of the hearing was an appropriate sanction. With regard to the merits of Complainant's allegation, the Commission noted that Complainant was not entitled to the accommodation of choice, and concluded that the Agency provided Complainant with a reasonable accommodation when it gave her a modified assignment within her limitations. The Commission found that Complainant also failed to prove her claim of disparate treatment because she did not show that the Agency's reasons for providing Complainant with the modified assignment were a pretext for discrimination. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130077 (December 6, 2013).

Settlement Agreements

Settlement Agreement Void. Complainant was assigned to work at a joint command facility of U.S. military activities with support provided by the Agency. Complainant worked with the Department of the Air Force, but believed she had been discriminated against by members of the Department of the Army. She was instructed to file her complaint with the Agency. Complainant and the Agency ultimately entered into a settlement agreement which provided, in pertinent part, that the Agency would provide Complainant with a letter stating that a named individual was not her rater or reviewer during a specific period, and would destroy a Written Oral Admonishment. Complainant subsequently notified the Agency that it was in breach of the agreement when it failed to destroy the Admonishment, and the Agency stated that it was unable to resolve the matter. On appeal, the Commission found that the agreement was void for lack of consideration. To accomplish the terms of the settlement regarding the Admonishment would have required action on the part of the Department of the Air Force which was not a party to the agreement. Further, obtaining a copy of the letter regarding the named individual may have required action on the part of the Department of the Army which was also not a party to the settlement agreement. The Commission noted that it is not generally concerned with the adequacy or fairness of the consideration in a settlement agreement as long as some legal detriment is incurred. When, however, one party incurs no legal detriment, the settlement agreement will be set aside for lack of consideration. The Agency was ordered to reinstate Complainant's complaint for processing. Complainant v. Dep't of Def., EEOC Appeal No. 0120130184 (December 24, 2013).

Settlement Agreement Did Not Constitute Valid Waiver Under OWBPA. The parties entered into a settlement agreement which provided, among other things, that the Agency would conduct a classification review of Complainant's position. The agreement also included a paragraph discussing the waiver of Complainant's allegations which stated that the agreement was a full and complete settlement of "any and all issues and claims arising from" the underlying EEO complaint, and Complainant agreed to waive her rights to pursue grievance, administrative, or judicial action concerning those matters. On appeal, the Commission stated that the underlying complaint contained an allegation of age discrimination. The Older Workers' Benefit Protection Act (OWBPA) provided certain minimum requirements for a waiver of age discrimination claims under the ADEA, and there was no evidence that the settlement agreement contained any of the seven elements discussed in the OWBPA. Therefore, the Commission concluded that Complainant did not knowingly and voluntarily waive her rights under the OWBPA. The Agency was ordered to reinstate the underlying complaint for processing. Complainant v. Dep't of the Army, EEOC Appeal No. 0120132842 (December 19, 2013).

Breach of Settlement Found. Complainant and the Agency entered into a settlement agreement that provided, in pertinent part, that the Agency would transfer Complainant to another division. At the time the agreement was executed, Complainant worked as a Supervisory Contract Specialist. Complainant ultimately alleged that the Agency breached the agreement when it failed to transfer her into a comparable supervisory position. On appeal, the Commission found that the Agency breached the agreement. The record included a personnel action form showing a change in status from Supervisory Contract Specialist to Contract Specialist. While the Agency construed the term "transfer" to mean simply moving Complainant to another division with no concomitant retention of her original supervisory position, Complainant believed the term "transfer" meant that she would retain her supervisory status. The Commission noted that ambiguities in the language of a contract are held against the drafter, in this case the Agency. Complainant asserted that the Agency was aware during negotiations that the transfer would not result in the loss of pay, title or supervisory duties since she had previously rejected an offer which would have resulted in the loss of her supervisory position, and the Agency did not dispute this contention. The Commission was not persuaded by the Agency's assertion that it complied with the agreement because the "unfortunateā€¦imprecise" nature of the word "transfer" opened the agreement up to multiple interpretations. The Commission interpreted the term "transfer" to mean a transfer to a substantially equivalent position, including supervisory status, and found that the Agency breached the agreement. Complainant v. Dep't of the Army, EEOC Appeal No. 0120132537 (November 15, 2013).

Settlement Agreement Void- No Meeting of the Minds. The parties entered into a settlement agreement that provided, among other things, that the Agency would pay uninterrupted administrative leave "until a Job Search/Offer" was made for employment or retirement. Complainant alleged that the Agency breached the agreement when it did not make her a job offer. The Agency asserted that it conducted a job search, but found no jobs within Complainant's medical limitations. On appeal, the Commission found that the settlement agreement was void for vagueness. While Complainant asserted that the slash in "Job Search/Offer" required the Agency to conduct a job search and make her an offer, the Agency claimed that it could satisfy the agreement by either conducting a job search or making Complainant an offer. Thus, the Commission found that the terms of the agreement were too vague to have allowed for a meeting of the minds. The Commission noted that, because ambiguities in the language used in a contract are held against the drafter, in this case the Agency, Complainant was not obligated to account for administrative leave taken in anticipation that the agreement would be enforced. The Agency was ordered to resume processing of the underlying complaint. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132605 (November 8, 2013).

Settlement Agreement Void. Complainant and the Agency entered into a settlement agreement that provided, among other things, that the Agency would "complete and give to" Complainant a performance appraisal for fiscal year 2010, and include Complainant's accomplishment narrative with his fiscal year 2011 performance plan. Complainant alleged that the Agency breached the agreement when the performance appraisal failed to cover all of his duties and activities for 2010. On appeal, the Commission found that the settlement agreement was void for lack of consideration. The Agency's promise to provide Complainant with a performance appraisal and include his accomplishment narrative was exceedingly vague and, absent further evidence from the Agency, provided Complainant with nothing more than what he was already entitled to receive without the agreement. The Agency was ordered to resume processing of the underlying complaint. Complainant v. Dep't of the Interior, EEOC Appeal No. 0120132472 (October 30, 2013).

Stating a Claim

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

Complainant v. Dep't of Transp., EEOC Appeal No. 0120132843 (January 10, 2014) (Complainant's claim that the Agency denied her request to make a presentation at a conference stated a viable claim of retaliation. Complainant stated that she was the only employee not allowed to participate in a panel or presentation session at the conference in an official capacity and was required to use annual leave to attend the conference. Therefore, Complainant suffered a loss to a term, condition or privilege of employment. The Agency's stated reason for the action, that Complainant's topic was not relevant, went to the merits of the complaint and was irrelevant to whether Complainant stated a justiciable claim).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132902 (January 9, 2014) (Complainant's allegation that a co-worker attempted to grab his butt, when considered with Complainant's assertion that the co-worker had done this in the past and made derogatory remarks to him, stated a viable claim of discriminatory harassment. The Commission noted that there was more than the single incident which the Agency relied upon in its decision).

Complainant v. Dep't of Justice, EEOC Appeal No. 0120122798 (December 18, 2013) (the Agency improperly dismissed Complainant's claim of sexual harassment. A review of the EEO Counselor's report reflected a series of alleged incidents that included Complainant being sexually harassed by a supervisory employee with whom she had an affair, and Complainant stated that when she reported the affair to management the employee spread lies about her, used sexual epithets, and made sexually explicit references regarding Complainant that harmed her reputation. Complainant further stated that she was removed from her bid post, and lost overtime and the opportunity for promotion. The Commission concluded that Complainant alleged a pattern of harassment that stated a cognizable claim of discrimination).

Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120132866 (December 18, 2013) (the Agency improperly dismissed Complainant's claim of discriminatory harassment. The Agency asserted that e-mails from Complainant's Supervisor provided in support of the claim contained general instructions, requested information and asked questions regarding work-related matters, and did not meet the severe or pervasive requirements. The Commission, however, stated that the e-mails were background evidence in support of her claim for harassment and did not constitute the harassment claim in its entirety. A fair reading of the record showed that Complainant was alleging that her Supervisor treated her differently in meetings, criticized her, provided her with additional assignments, reprimanded her more harshly for mistakes, micromanaged her, and gave her a lower performance appraisal. Viewing the incidents collectively in the light most favorable to Complainant, the Commission found that she set forth an actionable claim of harassment).

Complainant v. Dep't of Def., EEOC Appeal No. 0120132274 (December 13, 2013) (Complainant's allegation that his Supervisor threatened to transfer him, and stated he would not pay Complainant if he did not have leave scheduled when a mandatory meeting was planned stated a viable claim of disability discrimination. The comments could be construed as threats to deny Complainant tangible job benefits based on his disability, and were exacerbated by the fact that they were made by Complainant's immediate Supervisor. Further, the incidents were not isolated events since they occurred within one month of each other, and the Supervisor's alleged threat to transfer occurred directly after Complainant sent him an e-mail regarding his medical problems. A reasonable person in Complainant's situation could perceive the conduct as hostile or abusive, and Complainant was entitled to a fact specific inquiry into his allegations).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132780 (December 5, 2013) (the Agency improperly dismissed Complainant's claim of discriminatory and retaliatory harassment. In his pre-complaint forms and subsequent submissions, Complainant stated that he was subjected to a hostile work environment that included numerous pre-disciplinary interviews, errors to his leave balance, being assigned a vehicle that aggravated his medical condition, and being accused of falsifying documents and unauthorized use of overtime. When viewed collectively, Complainant's assertions were sufficiently severe or pervasive to alter the conditions of his employment and set forth an actionable claim of harassment).

Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120123382 (November 27, 2013) (Complainant's claim that the Agency issued a "suspension proposal," when considered with her assertion that the District Manager made a false report to the police about where she was parked, stated a viable claim of retaliatory harassment. Complainant alleged that the actions were taken in reprisal for her prior EEO and union activity, and the Agency did not dispute that Complainant had engaged in prior EEO activity. Further, participation in the grievance process may constitute protected activity if claims of discrimination are raised therein. Finally, the Commission has interpreted the statutory retaliation clauses to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter protected activity, and Complainant raised the issue of the District Manager's conduct as part of her overall claim of retaliatory harassment).

Complainant v. Dep't of Justice, EEOC Appeal No. 0120132527 (November 27, 2013) (Complainant's claim that the Agency conducted an "EEO complaint background check" which resulted in an investigation by the Office of Internal Affairs and created a hostile work environment stated a viable claim of retaliation. While Complainant previously filed a grievance regarding her resulting termination, the Commission noted that it has a strong public policy interest in ensuring that Agencies do not conduct investigations to obtain derogatory information on a Complainant in response to her filing an EEO complaint. Thus, the Commission is inclined to treat claims about such alleged investigations as distinct matters which independently state a claim of discrimination).

Complainant v. U.S. Gov't Printing Office, EEOC Appeal No. 0120132521 (November 8, 2013) (Complainant's claim that his former supervisor refused to complete a required portion of the forms needed to process Complainant's claim for benefits stated a viable claim of retaliation. The Agency's assertion that the supervisor did not complete the required forms because Complainant failed to first complete a portion of the application addressed the merits of the claim without a proper investigation required by the regulations).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120130136 (October 29, 2013) (Complainant's allegation that he was subjected to a barrage of degrading comments stated a viable claim of retaliation and harassment. Complainant alleged that, after serving as a witness in two EEO complaints, his supervisor continually referred to him as "worthless," "lazy," and "good for nothing").

Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120132362 (October 24, 2013) (Complainant's allegation that the Agency retaliated against him when it suspended his use of a government credit card stated a viable claim. Complainant cited written Agency policy concerning the use of government credit cards, and alleged that the suspension of his card use was disciplinary, exceeded actions taken against similarly situated employees, was not justified, and interfered with the performance of his duties. Thus, the allegations were sufficient to state a claim).

(In the following cases, the Commission affirmed the Agency's determination that the Complainant failed to state a claim. -Ed.)

Complainant v. Dep't of Justice, EEOC Appeal No. 0120132898 (January 9, 2014) (Complainant's allegation that the Agency subjected her to an investigation by the Office of Internal Affairs failed to state a viable claim of race discrimination. The investigation concluded that the charges were unfounded, no adverse action was taken against Complainant, and she conceded that it did not jeopardize her career. While Complainant asserted that the actions amounted to discriminatory harassment, the Commission found that the matter was not sufficient to raise a viable hostile environment claim).

Complainant v. Dep't of Def., EEOC Appeal No. 0120132938 (January 9, 2014) (the Agency properly dismissed Complainant's complaint alleging discrimination with regard to a "fully successful" rating on one critical job element of her performance appraisal. Complainant's overall rating was "Outstanding," and changing the score on the one element would not have any effect on her overall rating. Therefore, Complainant did not show how she was harmed. While Complainant stated that she suffered stress, the Commission has held that allegations that fail to state a claim cannot be converted into a viable claim because the complainant requests compensatory damages).

Complainant v. Dep't of Agric., EEOC Appeal No. 0120122597 (January 8, 2014) (the Agency properly dismissed Complainant's complaint alleging discrimination when two new mandatory fitness components were added to the annual fitness assessment. It was undisputed that the test is administered to all law enforcement officers, and, as part of his Fitness Instructor duties, Complainant was required to participate in the assessment. There was no claim that Complainant suffered a loss or harm because of the addition of the two elements, or that the Agency made any employment decision based upon the results. Complainant was alleging a concern about the potential for future harm, and such claims were insufficient to state a claim of harassment).

Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120132580 (December 3, 2013) (the weight of the evidence showed that the Agency did not exercise sufficient control over Complainant's position to qualify as his employer or a joint employer. The Agency provided the necessary equipment and location for Complainant to perform his job; Complainant worked for the Agency for at least five years; and the Agency had the authority to initiate Complainant's termination. Complainant, however, set his own schedule, was not supervised by the Agency, worked autonomously, was paid on a per-job basis, and did not receive benefits from the Agency. In addition, the agreement under which Complainant worked indicated that Complainant was prohibited from entering any Agency space not available to the public and from using Agency computers and telephones, and required Complainant to submit monthly invoices for payment); see also Complainant v. Tenn. Valley Auth., EEOC Appeal No. 0120131991 (November 13, 2013) (the Agency properly dismissed Complainant's complaint because the evidence did not show that he was an employee or applicant for employment. Complainant worked for a contractor and served as a Laborer at an Agency facility. Complainant's supervisor was an employee of the contractor, and the contractor managed his daily assignments and work schedule. Complainant was also paid by the contractor. Complainant worked on Agency projects for nine years, and participated in Agency training, and the Agency conducted the fitness-for-duty examination which led to Complainant's termination, but the Agency did not have significant control over the means and manner of Complainant's performance such that it could be considered a joint employer); Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120113737 (November 13, 2013) (the Agency did not exercise sufficient control over Complainant's position to qualify as a joint employer, and his complaint was properly dismissed. Complainant received training at an Agency facility under an agreement with a local community college. Complainant worked under the supervision of an Agency official, and used the Agency's supplies and computers. However, he worked at the Agency for only nine months and was paid by the college. The Agency did not provide him with leave or benefits, and the record showed that contractor terminated the contract with the Agency. The agreement between Complainant and the college provided that the Agency would permit the colleges clients to "train in an appropriate occupational area" within the Agency. Thus, the weight of the evidence supported the Agency's assertion that Complainant was a student in a vocational training program who was placed at an Agency facility to gain practical experience and was not an employee of the Agency).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132549 (November 14, 2013) (the AJ properly dismissed Complainant's claim that the Agency released her medical benefit compensation records to the Department of Labor and a state agency responsible for processing claims for unemployment. The Commission has interpreted the ADA to allow employers to disclose medical information to state workers' compensation offices in accordance with state laws. Therefore, the disclosure of Complainant's medical benefit forms to the state was permissible).

Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120132327 (October 31, 2013) (the Agency properly dismissed Complainant's claim that it discriminated against her when it denied her computer and telephone access she needed to perform her duties as union president. Complainant had been retired from the Agency for approximately five years, and her claim was tied to her role as a union representative and not an employee. Further, Complainant's assertions that the Agency's denial of her request violated the collective bargaining agreement and Federal Labor Relations Act constituted a collateral attack on the arbitration/negotiated grievance process).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132445 (October 29, 2013) (Complainant's allegation that the Agency retaliated against him when his suspension was upheld in a "Grievance Settlement-Implementation for Non-Compliance" constituted a collateral attack on the grievance process and was properly dismissed for failure to state a claim. The proper forum for Complainant to challenge his grievance settlement was within the grievance procedure itself).

Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120131004 (October 29, 2013), request for reconsideration denied, EEOC Request No. 0520140088 (April 15, 2014) (Complainant's allegation that she received a notice from the Office of Personnel Management that it would be collecting a government debt on behalf of the Agency failed to state a viable claim of discrimination. The Commission's regulations do not provide it with jurisdiction to decide matters involving debts covered by the Debt Collection Act, and the proper forum for Complainant to have raised her challenges to the debt collection was under that statute).

Summary Judgment

Summary Judgment Reversed. Complainant, a recently naturalized citizen, worked as an Immigration Service Clerk. Complainant worked for the Agency for seven years until he was terminated in September 2010. Complainant filed a formal EEO complaint alleging that he was subjected to discriminatory harassment for approximately five years, and that the Agency discriminated against him when it terminated him and placed him in a non-duty status. Following an investigation, Complainant requested an administrative hearing. The AJ ultimately granted the Agency's motion for summary judgment and issued a decision finding no discrimination. On appeal, the Commission concluded that the AJ erred when she found that there were no genuine issues of material fact in the case. Complainant detailed numerous incidents of harassment by his Supervisor including alleged hostile comments, and harsh discipline, and being locked in the Supervisor's office. The Commission found that, when viewed in the light most favorable to Complainant, a reasonable fact finder could conclude that they demonstrated animus toward Complainant's protected groups. In addition, the AJ failed to address incidents involving a co-worker. Complainant stated that he complained to his second-line Supervisor and Field Office Director about the hostile treatment and they did nothing to stop the behavior. Complainant also alleged a pattern of disparate treatment in that he was denied at least 13 opportunities for conversion to a permanent position. Complainant's Supervisor did not deny many of the incidents described by Complainant, but stated only that Complainant misunderstood her comments and actions. The Commission found that a reasonable fact finder could find that the totality of the circumstances amounted to a hostile work environment, and that the Supervisor held discriminatory animus toward Complainant. The Commission also found apparent contradictions in the Agency's reasons for terminating Complainant which were sufficient to raise a genuine issue of material fact. Therefore, the matter was remanded for an administrative hearing. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120121312 (January 9, 2014).

Summary Judgment Reversed. Complainant, a Grants Officer, filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of disability, age, and prior EEO activity when she was subjected to harassment and denied accommodation, and when the Agency requested certain medical information. Specifically, Complainant stated that her Supervisor constantly criticized her work and required her to assist others but did not provide her with similar support. Complainant also asserted that the Agency gave her a lower performance rating than in past years which resulted in no monetary award, and did not provide her with reasonable accommodation in the form of a revised telework agreement, and either a temporary reduction in workload or reassignment. Following an investigation, Complainant requested an administrative hearing. The AJ ultimately found in favor of the Agency by summary judgment.

On appeal, the Commission concluded that the AJ erred in issuing a decision by summary judgment as there were significant issues of material fact that needed to be resolved through a hearing. The record in the case clearly established that Complainant was an otherwise qualified individual with a disability, and the Agency did not dispute this conclusion. In addition, Complainant submitted a series of requests for reasonable accommodation which the Agency either failed to act on or denied. The Agency did not consider any alternative effective accommodation and never considered whether allowing Complainant to work at home would create an undue hardship. While the AJ found that the Agency's actions were justified because Complainant failed to provide requested medical documentation, Complainant provided ample evidence that she did submit medical documentation to the Agency. The Commission found that whether the medical documentation was sufficient for the Agency to grant Complainant's accommodation requests was a critical issue that needed to be resolved. Complainant asserted that the Agency continued to make unwarranted requests for additional documentation in violation of the Rehabilitation Act, and management officials provided inconsistent reasons for requesting the documentation. Complainant also persuasively argued that the issue of her workload was inappropriate for summary judgment because her request was denied by her Supervisor without engaging in the interactive process. The Commission concluded that the AJ improperly resolved these issues by weighing conflicting evidence and making credibility determinations that were not suitable for summary judgment. The complaint was remanded for a hearing. Complainant v. Nat'l Sci. Found., EEOC Appeal No. 0120121886 (December 11, 2013).

Summary Judgment Affirmed. Complainant worked for the Agency for approximately 20 years, and had served as an Operations Supervisor for two years. He filed a formal EEO complaint alleging that the Agency discriminated against him on the bases of age, disability, parental status, and prior EEO activity when he was told to move from his office to a cubicle, ordered to give a presentation, denied opportunities to work overtime, and issued a Letter of Counseling, and when certain statements were made in his mid-year assessment and he was given a lower performance rating. Complainant ultimately requested a hearing in the matter. The AJ, however, issued a decision without a hearing finding no discrimination.

On appeal, the Commission affirmed the AJ's decision. The Commission initially determined that the AJ's issuance of a decision without a hearing was appropriate. The record had been adequately developed and Complainant was given notice of the Agency's motion for a decision without a hearing and the opportunity to respond thereto. Complainant also received a comprehensive statement of undisputed facts and had the opportunity to engage in discovery. The Commission stated that, even assuming all facts in favor of Complainant, a reasonable fact-finder could not find in Complainant's favor. The Commission stated that the Agency articulated legitimate, non-discriminatory reasons for its actions, and Complainant failed to show that those reasons were a pretext for prohibited discrimination. Other than his unsupported statements, there was no evidence in the record that any of the Agency's actions were motivated by discriminatory animus. The Commission stated that a finding of hostile work environment was precluded by the determination that Complainant failed to establish that any of the actions at issue were discriminatory. Complainant v. Soc. Sec. Admin., EEOC Appeal No. 0120113318 (December 6, 2013).

Summary Judgment Affirmed. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his race when he did not receive an overall performance rating of "Outstanding." The AJ ultimately issued a decision without a hearing finding that Complainant failed to prove his allegation of discrimination. On appeal, the Commission initially found that the AJ's issuance of a decision on summary judgment was proper. While Complainant asserted that the AJ did not consider his response, the Commission noted that the AJ specifically acknowledged Complainant's response in the decision. In addition, the record was adequately developed, and Complainant was given notice of the AJ's intent to issue a decision without a hearing and a comprehensive statement of allegedly undisputed material facts, and had the opportunity to engage in discovery. The Commission found that there was no genuine issue of material fact in the case. The Commission further affirmed the AJ's finding of no discrimination. The Agency articulated legitimate, nondiscriminatory reasons for its action specifically that Complainant did not receive a rating of "Outstanding" on at least three performance elements. While Complainant disagreed with his Supervisor's assessment of his performance, he did not submit any evidence to show that the Supervisor's assessment was racially motivated. Complainant v. Dep't of Justice, EEOC Appeal No. 0120132206 (November 13, 2013); request for reconsideration denied, EEOC Request No. 0520140118 (June 10, 2014).

Timeliness

Complaint Improperly Dismissed for Untimely Counselor Contact. Complainant contacted an EEO Counselor on February 21, 2013, and subsequently filed a formal complaint alleging that the Agency retaliated against him when it held his promotion in abeyance due to an ongoing internal investigation. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that Complainant was notified that his promotion would be held in abeyance on October 10, 2012. On appeal, the Commission found that the Agency's dismissal was improper. The record showed that although Complainant was notified that his promotion would be held in abeyance in October 2012, the effective date of the promotion was January 13, 2013. Arguably, Complainant could not challenge the Agency's failure to promote him until after he was entitled to receive the promotion. Therefore, Complainant's EEO Counselor contact was within the 45-day limitation period. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120132727 (January 8, 2014).

Dismissal for Untimely EEO Counselor Contact Improper. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it did not select him for three positions. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that the actions occurred during the period ending in January 2011 and Complainant did not initiate EEO contact until February 14, 2013. On appeal, the Commission noted that the record showed that Complainant made various efforts to pursue the issue of the non-selections in February 2011, including initiating contact with the Inspector General's Office and the Special Operations Command. Complainant's allegations were forwarded to the Agency's Equal Employment Office in March 2011, but the matter was purportedly closed in June 2011. Therefore, the Commission found that Complainant attempted to pursue the subject claims far earlier than the date identified by the Agency. In addition, Complainant indicated on appeal that he was confused about the EEO complaint processing time limitations, and the record did not show that Complainant had actual or constructive knowledge of the applicable limitation period. Complainant v. Dep't of the Air Force, EEOC Appeal No. 0120132801 (December 18, 2013).

Time Limit for Contacting EEO Counselor Extended. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him on the basis of his disability when it failed to accommodate him from August 2011 through January 2012, and issued him a Notice of Proposed Removal on February 7, 2012. The Agency dismissed the complaint for failure to timely contact an EEO Counselor, stating that Complainant first contacted a Counselor on April 18, 2012. On appeal, the Commission found sufficient reason to extend the time limit for contacting an EEO Counselor. Complainant provided evidence that he first contacted the EEO Office concerning the Notice of Proposed Removal on February 21, 2012. While an EEO Assistant responded to Complainant, the EEO Office did not contact Complainant further to arrange for counseling until Complainant again contacted the EEO Office in April. The Commission further noted that there was ample evidence that Complainant experienced flare-ups of his mental disabilities during the period in question. Thus, the Commission reversed the Agency's dismissal of the complaint. Complainant v. Dep't of Health & Human Serv., EEOC Appeal No. 0120123305 (October 25, 2013).

Agency Estopped from Dismissing Complaint as Untimely. Complainant contacted an EEO Counselor and subsequently filed a formal complaint in December 2012 alleging, among other things, that the Agency discriminated against her when it prevented her from being nominated for an award by the April 30, 2010 deadline, and she was not promoted to a higher grade level in October 2011. The Agency dismissed the claims for failure to timely contact an EEO Counselor and failure to timely file a formal complaint. On appeal, the Commission found that the Agency's dismissal was improper. The record showed that Complainant initiated EEO contact on the first matter by June 3, 2010, and on the second matter on October 8, 2011, both of which were timely. The Commission noted that Complainant did not effectively withdraw her contact by sitting on her rights, but repeatedly asked the Agency to process her EEO complaint to no avail. Further, Complainant was not issued a notice of right to file a complaint until September 4, 2012, which the Commission characterized as a lengthy delay. The Commission noted that the Agency's Office of Civil Rights attempted to informally resolve Complainant's EEO issues, but found that the Agency's inaction and delay rose to the level of negligence and bordered on stonewalling or a deliberate refusal to process the claims. Therefore, the Commission concluded that the Agency was stopped from dismissing Complainant's complaint as untimely. The Commission noted that Complainant's delay arose from confusion likely caused in part by the Agency's long delays. Complainant v. Dep't of State, EEOC Appeal No. 0120132662 (December 18, 2013).

EEO Counselor Contact and Complaint Found Timely. Complainant contacted an EEO Counselor and subsequently filed a formal complaint alleging that the Agency discriminated against her on the bases of race, age and prior EEO activity and subjected her to a hostile work environment. The Agency dismissed the complaint for failure to timely contact an EEO Counselor and failure to timely file a formal complaint. On appeal, the Commission reversed the Agency's decision. Complainant asserted that she was not aware of her EEO rights until she attended mandatory EEO training on April 11, 2012. The Commission found nothing in the record to show that Complainant had either actual or constructive knowledge of the 45-day limitation period prior to that time. In addition, Complainant raised other matters in an addendum that purportedly occurred within 45 days of the initial EEO contact. With regard to the filing of the formal complaint, the record showed that Complainant received the notice of right to file on August 17, 2012. Complainant's attorney submitted an affidavit from his Office Manager stating that she mailed the formal complaint on August 28, 2012, and received an acknowledgment from the Agency indicating the complaint was received on September 4. The Commission noted that when the last day of the filing period falls on a Saturday, Sunday or federal holiday, the period is extended to include the next business day. Therefore, the complaint was timely filed. While the Agency determined that the submission was not complete, the Agency did not dispute Complainant's assertion that it failed to account for double-sided pages. Thus, the Commission stated that the Agency erred in using September 7, the date on which the complaint was resubmitted, as the filing date. Complainant v. Dep't of the Navy, EEOC Appeal No. 0120132373 (October 24, 2013).

Justification Found for Excusing Untimely Filing. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it did not select him for a position or for a training course. The Agency dismissed the complaint as untimely. The record showed that the notice of right to file a formal complaint was sent to the address of Complainant's attorney of record by certified mail and signed for on April 10, 2013. Complainant did not file his formal complaint, however, until May 1, 2013, which was beyond the applicable limitation period. Complainant's attorney contended that the signature on the certified mail receipt was that of an individual unknown to him and not an agent or employee of his office. In addition, Complainant's attorney provided an affidavit from the manager of the building where the office is located indicating that the individual was also not his agent or a tenant in the building. Complainant's attorney stated that the notice was not placed in his mailbox until April 30, 2013. The Commission found that the circumstances of the case provided adequate justification to excuse any untimely filing of the complaint, and the Agency did not provide sufficient evidence that the notice was received by Complainant's attorney. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120132751 (January 9, 2014).

Time Limit for Filing Complaint Tolled. Complainant initially filed an appeal with the Merit Systems Protection Board (MSPB) in October 2012 with regard to her termination. Complainant alleged that the action was discriminatory. Complainant also initiated EEO counseling with regard to the matter and was notified of the requirement to elect to file either an appeal with the MSPB or an EEO complaint. Complainant received a Notice of Right to File a Discrimination Complainant on November 19, 2012. After the MSPB dismissed Complainant's appeal for lack of jurisdiction, Complainant filed a formal EEO complaint on January 29, 2013. The Agency dismissed the complaint as untimely. On appeal, the Commission noted that the Agency properly issued Complainant the Notice because she initiated EEO counseling. Complainant asserted, however, that she learned of the election requirement days after filing her MSPB appeal and believed that the processing of her informal EEO complaint would be held in abeyance. Complainant stated that she discussed the MSPB appeal with the EEO Counselor, and thought she could not file her complaint until the MSPB ruled on the issue of jurisdiction. The Commission found Complainant's reason for delaying filing her EEO complaint was persuasive, and Complainant promptly filed her complaint once the MSPB appeal was dismissed. Therefore, the Commission concluded that it would be inequitable to dismiss Complainant's complaint, and tolled the applicable limitation period. Complainant v. Dep't of State, EEOC Appeal No. 0120131559 (December 19, 2013).

Formal Complaint Timely Filed. Complainant filed a formal EEO complaint alleging that the Agency subjected her to harassment and denied her reasonable accommodation. The Agency dismissed the complaint as untimely. The Agency stated that the Notice of Right to File a Formal Complaint was delivered to and signed for at Complainant's address of record on February 10, 2012, but Complainant's complaint was not filed until February 28, 2012. On appeal, the Commission reversed the Agency's decision. The Notice was received and signed for by Complainant's apartment complex manager. Complainant stated that the Manager placed the Notice in her mailbox without informing her of its delivery, and she did not receive the notice until she checked her mailbox on February 13, 2012. The Commission stated that the delivery to the Manager was not sufficient to commence the filing period, and the appropriate date of receipt was February 13, the date Complainant received the Notice. Therefore, the formal complaint was timely. Complainant v. Small Bus. Admin., EEOC Appeal No. 0120122093 (November 26, 2013).

Formal Complaint Timely Filed. Complainant filed a formal EEO complaint alleging that the Agency discriminated against her on the bases of race, age and prior EEO activity. The Agency dismissed the complaint as untimely, stating that while Complainant received the notice of right to file a formal complaint on April 1, 2013, she did not file her complaint until May 1, which was beyond the 15-day limitation period. On appeal, the Commission noted that the formal complaint dated April 14, 2013, was mailed to the Agency in an envelope containing a mailing label dated April 16, 2013. Complainant asserted that she mailed the complaint on that day and the Agency delayed processing the item. The Commission stated that the Agency bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness. While the Agency's "Track and Confirm" system indicated that the envelope was not "Enroute/Processed" until May 2, 2013, the Commission determined that was not adequate proof that Complainant did not mail the envelope on April 16, the date she purchased the mailing label. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132577 (November 20, 2013).

Extension of Time for Filing Formal Complaint Justified. Complainant filed a formal EEO complaint alleging that the Agency discriminated against him when it failed to select him for a position. The Agency dismissed the complaint as untimely, stating that Complainant's attorney received the notice of right to file on March 27, 2013, but the complaint, which did not have a postmark, was not received until April 25, 2013. On appeal, Complainant's attorney provided a statement indicating that he mailed the complaint to the Agency on April 5, 2013, and the record included a copy of the original certificate of mailing. The Commission concluded that, given the lack of a postmark on the envelope, Complainant provided adequate justification to warrant an extension of the time limit for filing the complaint. Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120132694 (November 22, 2013).

Extension of Time for Filing Formal Complaint Justified. Complainant contacted an EEO Counselor and subsequently filed a formal complaint alleging that the Agency discriminated against her on the bases of sex and prior EEO activity. The Agency dismissed the complaint as untimely, stating that Complainant received the Notice of Right to File a formal complaint on January 18, 2013, but failed to file her complaint until January 26, which was after the 15-day limitation period. On appeal, the Commission found that Complainant provided sufficient medical support to show that her medications and their side effects interfered with her ability to understand the deadline. The record included a note from Complainant's physician stating that, after surgery, he prescribed medication for Complainant with side effects that included "mental fogginess, lethargy and drowsiness," and that Complainant was taking other medication which had side effects such as intensified cognitive impairment. Thus, the Commission concluded that Complainant demonstrated that an extension of time was warranted in this case. Complainant v. Dep't of the Army, EEOC Appeal No. 0120132006 (October 23, 2013).

ARTICLE

(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 http://www.eeoc.gov/, as well as on Commission case law and court decisions. Some EEOC decisions cited may have appeared in previous editions of the Digest. -Ed)

The Equal Pay Act:
An Overview and Recent Case Law

By: Jessica Brittany Bingham, Wanda L. Jones, Joseph M. Kirchgessner, & Ebbie Yazdani

Introduction

The Equal Pay Act (EPA) was signed into law in 1963 and went into effect on June 11, 1964.1 The EPA prohibits sex-based wage discrimination between men and women who perform jobs that require substantially equal skill, effort, and responsibility under similar working conditions in the same establishment.2 The EPA only prohibits unequal pay based on sex; therefore, lower wages based on seniority, merit, or other criteria are permissible. Enforcement authority for the EPA was initially vested in the Department of Labor, but was eventually transferred to the Commission in 1979.3 At the time that the EPA went into effect, women were earning 59 cents for every dollar paid to men.4 While this wage gap has since decreased, pay equality has not yet been attained.

An Overview of the EPA and Elements of a Claim

Congress enacted the EPA to ensure that wage rates paid by employers would no longer reflect the outdated belief that a man, because of his traditional role in society, should be paid more than a woman is paid for the same work.5 The EPA established that wage discrimination based on sex is a violation of the Fair Labor Standards Act (FLSA).6 The EPA requires employers to pay male and female employees at the same establishment equal wages for equal work.7 The Act applies to work which requires equal skill, effort, and responsibility, and which is performed under similar working conditions.8 The Act provides for four exceptions which may be raised by an employer as affirmative defenses, including where payment is made pursuant to (1) a seniority system; (2) a merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a differential based on any other factor other than sex.9

The prohibition against compensation discrimination under the EPA applies to jobs "within any establishment."10 Federal regulations define establishment as a distinct physical place of business rather than an entire business or enterprise which may include several separate places of business.11 An establishment ordinarily means a physically separate place of business.12 Two or more physically separate portions of a business should, however, be considered one "establishment" if personnel and pay decisions are determined centrally and the operations or the separate units are interconnected.13

The prima facie case stems directly from the statute. The plaintiff, bearing the initial burden to prove a prima facie case, must show that the employer pays lower wages to employees of the opposite sex who perform "equal work on jobs [requiring] equal skill, effort, and responsibility at the same establishment," and that these jobs are performed under similar working conditions."14 If the plaintiff makes this showing, the burden then shifts to the defendant to prove that one of the Act's four affirmative defenses applies.15

An opposite sex comparator, who performs equal work on a job requiring equal skill, need not have held the same job at the same time as the plaintiff. For example, a prima facie violation of the EPA can be established if a male employee is replaced with a lower paid female, or a female employee is replaced with a higher paid male. On the other hand, if there have never been any men performing substantially the same work as women in a work establishment, or vice versa, it is not possible to establish an EPA violation.16

To demonstrate that the jobs involve "equal work," the first step is to identify the core duties and tasks of the job as they are actually performed by the incumbent (not just as stated in a job description) and demonstrate that a significant portion of these tasks and duties are the same. It should be noted that "equal" does not mean "identical" and minor differences in the degree or amount of skill, effort, or responsibility required will not preclude a finding that the jobs are "equal."17 After demonstrating that the jobs involve "equal work," the prima facie case turns to demonstrating that the jobs require substantially equal skill. This includes consideration of factors such as experience, training, education, and ability, and must be measured in terms of the performance requirements of the job.18

Next, the level of effort required to perform the jobs must be substantially equal. A determination as to whether jobs require substantially equal effort should examine the total requirements of the jobs.19 The level of effort required involves the measurement of physical or mental exertion needed to perform the particular job.20 If two jobs are otherwise equal and there is no substantial difference in the amount or degree of effort expended in performing the jobs, the jobs may require equal effort even though the effort may be exerted in different ways.21 The level of responsibility or accountability within the organization also must be substantially equal.22

Finally, there must be similar working conditions in the complainant's and the comparator's jobs. The Supreme Court has held that there are two factors to consider, surroundings and hazards.23 Federal regulations point out that surroundings measure the elements, such as toxic chemicals or fumes; while hazards take into account physical hazards regularly encountered, their frequency, and the severity of injury they can cause.24 The time of day and difference in shifts are not relevant criteria.25

As the Act spells out, there are four defenses an employer may utilize after a Complainant shows a prima facie case: a seniority system, a merit system, a system that measures quality or quantity of production ("incentive system"), or a factor other than sex.26 A seniority, merit or incentive system must be a "bona fide" system to qualify as an EPA defense.27 This means that the system must not have been adopted with discriminatory intent, was based on predetermined criteria, was communicated to employees, and was applied consistently and even-handedly to employees of both sexes.28

The last defense codified in the EPA is the popular "factors other than sex" defense.29 In rebutting the employee's prima facie case, employers have raised a wide array of possible factors including education, experience, training and ability.30 To be a successful EPA defense, the employer must establish that a gender-neutral factor, applied consistently, explains the compensation disparity.31 The employer must also show that the factor is related to the job requirements or otherwise beneficial to the employer's business.32 Qualifications such as greater education, experience, training or ability will not justify higher compensation if the employer is not aware of these factors when it sets the compensation or if the employer does not consistently rely on the particular qualification.33 Employers have occasionally asserted that a difference in compensation is due to a male employee's "market value." Market value qualifies as a factor other than sex only if the employer proves that it assessed the marketplace value of the particular individual's job-related qualification, and any compensation disparity is not based on sex.34 Prior salary alone is not sufficient to justify a compensation disparity.35

A prevailing party may recover the pay differential for two years (or three years if it is proven to be a willful violation36) plus attorneys' fees and costs.37 The back pay award may be doubled as liquidated damages.38 It is important to note that compensatory and punitive damages are not available under the EPA.39

Interplay Between the EPA and Other Statutes

Title VII was passed in 1964 one year after the EPA was enacted.40 Unlike the EPA, Title VII does not require that the complainant's job be substantially equal to that of a higher paid male employee.41 Comparisons can be made under Title VII between the compensation rates of "similarly situated" employees, a more relaxed standard than the equal work requirement under the EPA.42 Furthermore, a Title VII claim can be brought based on an employer's segregating or classifying protected class workers in lower paying jobs and limiting their opportunities to secure higher paying jobs.43 Title VII also does not require the complainant to work in the same establishment as a comparator.44

Landmark Supreme Court Cases

In Corning Glass Works v. Brennan,45 the Supreme Court examined the EPA through the case of the named company paying male night shift inspectors a higher base wage than it paid to female inspectors performing the same tasks on the day shift. After the EPA was signed into law, Corning Glass began initiating efforts to eliminate the different pay rates paid to male and female inspectors. In 1969, a new collective-bargaining agreement (CBA) went into effect, establishing a new job evaluation system for setting wage rates.46 This new system abolished future differentials in base wages for day and night shift inspectors.47 However, for employees hired before the new CBA was adopted, a higher "red circle" rate was reserved, perpetuating the difference in base wage rates for day and night inspectors.48

The Court examined the four statutory exceptions to violations of the EPA: seniority systems, merit systems, systems which measure earnings by quantity or quality of production, and any other factor than sex.49 The Court relied on legislative history when analyzing the EPA's burden shifting framework, namely statements from members of Congress about what would be excluded from the fourth exception of the EPA's affirmative defenses to pay discrimination.50 Congress did not want to create a vague and incomplete framework for pay discrimination cases. Instead, Congress wanted to make sure that employers had the ability to differentiate wage schedules in a manner that fit within well-established principles of job evaluation. In Corning, the night shift differential originated prior to the enactment of the EPA. At that time, only men were allowed to work at night and the employer paid them more simply because they were men. When the night shift was opened to women, the employer did not fix the differential, and since it was grounded in discrimination, the Court found this was not a factor other than sex.51

In County of Washington v. Gunther,52 the Supreme Court reexamined the EPA's role in relation to Title VII's prohibition on sex discrimination. In this case, women who were employed as prison guards alleged that they were paid lower wages than male guards due to intentional sex discrimination.53 The Court looked at the language of the EPA, and addressed the issue of whether the Bennett Amendment restricted Title VII sex-based wage discrimination claims to those that could also be brought under the EPA or merely incorporated the four affirmative defenses of the EPA. The Court held that the Bennett Amendment did not restrict Title VII's prohibition on sex-based wage discrimination to claims of equal pay for "equal work." Instead, claims of sex-based wage discrimination could be brought under Title VII even if no member of the opposite sex held an equal but higher paying job, as long as the wage rate was not exempted by the four exceptions listed in the EPA.

The Court found that the language of the Bennett Amendment suggested an intention only to incorporate the affirmative defenses of the EPA into Title VII. The Court acknowledged that the effect of the fourth, catch-all affirmative defense would be significant for Title VII litigation.54 Title VII's prohibition of employment discrimination was broadly inclusive, and its burden-shifting framework reflected the intent of Congress.55 So too, did the four affirmative defenses of the EPA.

Once again, the Court examined the legislative history of the statutory provision. As the Court explained, several Senators had concerns about the potential for inconsistencies between the EPA and Title VII.56 Senator Bennett introduced his amendment to the Title VII legislation in the interest of clarification.57 The EPA, as part of the Fair Labor Standards Act, had its own set of exceptions. The Bennett Amendment would preserve these exceptions in discrimination cases where Title VII would apply.

Recent Case Law

Recently in Murphy v. Ohio State University,58 the 6th Circuit examined the applicability of the EPA and affirmed the District Court's grant of summary judgment. The plaintiff, a public safety employee, was hired as a full-time employee and had an hourly rate of pay set in accordance with a collective bargaining agreement (CBA) between the Police Union and the University.59 A male employee hired one year later to another full-time position was given an hourly rate equivalent to the highest rate paid to any current dispatcher, more than a 10% increase from the plaintiff's hourly rate.60

Plaintiff filed a complaint alleging the University violated the EPA, in addition to Title VII.61 The parties agreed that the plaintiff established a prima facie case of wage discrimination.62 However, the University asserted that its justification for the pay differential (based on a factor other than sex) allowed it to escape liability.63 In particular, the University argued that it used the number of years of experience prior to working for the University as a factor in its pay schedule. In this case, the male employee had more years as a police dispatcher before joining the University than did the plaintiff.64

The 6th Circuit concluded that years of relevant work experience was a factor other than sex that "justifies wage differentials between male and female employees."65 The factor used was not "arbitrary or capricious" because it was a standard that was "easily and objectively identifiable."66 The fact that the University did not consider the applicant's "longevity, education, type of police dispatching, or knowledge of and familiarity with [the] environment" did not violate the EPA's affirmative defense language.67

In Ponamgi v. Safeguard Services,68 the Plaintiff appealed the district court's grant of summary judgment in favor of the Defendant. In this case, Plaintiff brought an EPA claim against her employer.69 She was paid less than her coworkers, but the employer explained that this was due to her subpar performance and having less prior experience than the other employees.70 The employer also stated that its newer employees were paid more in an effort to attract more competitive applicants after the employer received a reward contract.71 On appeal, Plaintiff argued that the District Court improperly evaluated the employer's motion for summary judgment through the burden-shifting regime of McDonnell Douglas.72 The 11th Circuit noted that the employer's burden in proving an affirmative defense was heavy and the employer must demonstrate that gender provided no basis for the difference in wages.73 The 11th Circuit then affirmed the District Court's ruling, based on Plaintiff's limited technical skills, and the fact that she could not perform the same work as her coworkers, and had the least experience in her position.74 The 11th Circuit further agreed with the District Court's finding that newer employees had a higher salary due to the new contract.75 Lastly, the 11th Circucit noted that even if Plaintiff established a prima facie case, she had not produced affirmative evidence to contradict the employer's defense to explaining the pay disparity.76

Conclusion

The movement for equal pay for equal work has undergone a remarkable transformation. However, disparity in pay rates based on gender difference still exists in the workplace. The Commission will continue to focus on the issue of equal pay when addressing cases arising under the EPA.


1 Equal Pay Act of 1963, 29 U.S.C. § 206(d) (2006).

2 Id.

3 The Law, EEOC 35TH ANNIVERSARY, http://www.eeoc.gov/eeoc/history/35th/thelaw/ (last visited Apr. 11, 2014).

4 FIFTY YEARS AFTER THE EQUAL PAY ACT: ASSESSING THE PAST, TAKING STOCK OF THE FUTURE, National Equal Pay Task Force 6 (June 2013) available at www.whitehouse.gov.

5 S. REP. NO. 176, 88TH Cong., 1st Sess. 1 (1963).

6 H.R. Rep. NO. 88-309 (1963), reprinted in 1963 U.S.C.C.A.C. 687, 687-688, 1963 WL 4623.

7 EEOC Compliance Manual, Chapter 10, Section 10-II (December 5, 2000).

8 29 USC §206(d)(1) (2006).

9 Id.

10 EEOC Compliance Manual, Chapter 10, Section 10-IV (D) (December 5, 2000).

11 29 C.F.R. § 1620.9.

12 EEOC Compliance Manual, Chapter 10, Section 10-IV(D) (December 5, 2000).

13 Id.

14 See 29 U.S.C. § 206(d)(1) (2006).

15 29 U.S.C. § 206(d)(1); Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974).

16 EEOC Compliance Manual Chapter 10: Compensation Discrimination (December 5, 2000).

17 See 29 C.F.R. § 1620.14.

18 29 C.F.R. § 1620.15.

19 29 C.F.R. § 1620.16(a).

20 Id.

21 Id.

22 29 C.F.R. § 1620.17.

23 Corning Glass, at 202.

24 29 C.F.R. § 1620.18(a).

25 Id.

26 29 U.S.C. 206(d)(1).

27 EEOC Compliance Manual, Chapter 10, Section 10-IV(F)(1).

28 Id.

29 29 U.S.C. 206(d)(1).

30 EEOC Compliance Manual, Chapter 10, Section 10-IV(F)(2).

31 Id.

32 See, e.g., Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, at 525 (2d Cir.), cert. denied, 506 U.S. 965 (1992); Kouba v. Allstate Ins. Co., 691 F.2d 873, 876 (9th Cir. 1982).

33 Id.

34 EEOC Compliance Manual, Chapter 10, Section 10-IV(F)(2)(g).

35 Id.

36 A violation is willful if the employer either "knew or showed reckless disregard" for whether its conduct was prohibited by the statute. Perdue v. City Univ. of N.Y., 13 F. Supp.2d 326, 333 (E.D.N.Y. 1998).

37 29 U.S.C. §216(b) (2006).

38 Id.

39 Id.

40 42 U.S.C. §2000e-2(a)(1).

41 EEOC Compliance Manual, Chapter 10, Section 10-V.

42 Id.

43 Id.

44 Id.

45 Corning Glass Works v. Brennan, 417 U.S. 188, 193 (1974).

46 Id. at 194.

47 Id.

48 Id.

49 Id. at 196.

50 Id. at 207.

51 Id.

52 County of Washington v. Gunther, 452 U.S. 161 (1981).

53 Id. at 163-164.

54 Id. at 170.

55 Id.

56 Id. at 173.

57 Id.

58 Murphy v. Ohio State University, 2013 WL 5878184 at 1.

59 Id.

60 Id.

61 Id. at 2.

62 Id. at 3.

63 Id.

64 Id. at 4-5.

65 Id.

66 Id.

67 Id.

68 Ponamgi v. Safeguard Services, LLC, No. 13-12969, 2014 WL 866412, at *1, (11th Cir., Mar. 6, 2014).

69 Id.

70 Id.

71 Id.

72 Id.

73 Id.

74 Id.

75 Id.

76 Id.