Volume XIV, No. 2
Office of Federal Operations
Spring Quarter 2003
The Digest of EEO Law is a quarterly publication of EEOC's Office of Federal Operations (OFO).
Carlton M. Hadden, Director, OFO
Donald Names, Director, OFO's Special Services Staff
Editor: Arnold Rubin
Writers: Dann Determan, Robyn M. Dupont, Lori Grant, Navarro Pulley
Available in accessible formats for persons with disabilities. The Digest is now available online through EEOC's homepage at www.eeoc.gov. If you wish to receive a copy in print, you must send a request, in writing, to Arnold Rubin, EEOC, Office of Federal Operations, 1801 L Street, N.W., Washington, D.C. 20507.
No Abuse of EEO Process Found. The Commission found that the agency improperly dismissed complainant's consolidated complaints for abuse of process. EEOC recognized that complainant had filed over 20 complaints and that the agency had framed the complaints as being comprised of over 800 claims. However, the Commission noted that the complaints were submitted in the form of a narrative daily log. It appeared that complainant listed so many dates and incidents in order to illustrate the alleged pervasive nature of the disparate treatment to which he had allegedly been subjected. The Commission found that complainant did not appear to be misusing the EEO process, but instead appeared to have filed complaints which were unwieldy and incapable of investigation. EEOC reminded complainant that, in the future, he had to specifically list only the claims of discrimination in the complaint and to save background information or evidence for the investigatory stage of the complaint. The Commission remanded the complaints for clarification and further processing. Gallegos v. Department of the Interior, EEOC Appeal No. 01A15408 (December 16, 2002).
No Interest Available on Attorney's Fees, Absent Undue Delay. The Commission found that complainant was not entitled to interest on attorney's fees when the agency, within appropriate time periods established by the Commission and Regulations, paid the awards after the Commission's decisions determined the amounts in controversy. Thomas v. Smithsonian Institution, EEOC Appeal No. 01A20336 (January 21, 2003). Cf. Cole v. United States Postal Service, EEOC Petition No. 04950009 (February 17, 1997) (interest ordered for 3-year delay in payment of award); and Shrader v. Department of Agriculture EEOC Appeal Nos. 01964602) and 01970488 (November 25, 1998) (delay of 16 months between date of fee petition filing and the date of agency's final decision on fees; Commission found agency did not delay in pay attorney's fees once a specific sum was awarded).
Compensatory Damages Unavailable in Disparate Impact Case. In its previous appellate decision, the Commission found that complainant was subjected to race-based discrimination under a theory of disparate impact when he was not selected for the position of Legal Technician due to his arrest record. In its request to reconsider, the agency noted that it accepted the Commission's finding of disparate impact discrimination and complied with the Commission's order, but for that portion which directed the agency to conduct a supplemental investigation into the issue of compensatory damages. Citing Section 102 of the Civil Rights Act of 1991, the agency argued that compensatory damages are not available in disparate impact cases. The Commission agreed and granted the agency's request. Beaton v. Department of Justice (Board of Immigration Appeals), EEOC Request No. 05A30093 (January 6, 2003).
In the following decisions, the Commission took these actions:
Complainant Not a Direct Threat: Discrimination Found. Complainant, a distribution clerk, had been treated for back problems over many years. A letter from complainant's most recent physician stated that he had a herniated disc, and he was advised not to lift objects weighing more than 20 pounds and to rest if the pain recurred. After conducting a fitness-for-duty examination, the agency informed complainant that the medical officer had assessed him as a moderate risk. The plant manager subsequently concluded that complainant's continued employment would not be in either complainant's or the agency's best interest and terminated complainant.
An EEOC AJ concluded that the agency regarded complainant as being disabled and terminated him based on that perception. On appeal, the Commission agreed with the AJ that the agency regarded complainant as disabled, based upon its assessment that he could not lift more than 20 pounds, bend, or lean, as described in his medical documentation. The Commission noted complainant's uncontradicted testimony that, on the few occasions when he had to lift more than 20 pounds, he merely put on a back brace. EEOC also noted that complainant was subsequently reinstated into a distribution clerk position and thus concluded, as did the AJ, that complainant was a qualified individual with a disability under the Rehabilitation Act. The Commission found that the agency had failed to conduct an individualized assessment, taking into account the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. Accordingly, the Commission found that the agency had failed to show that complainant's continued employment in his distribution clerk position posed a direct threat, and that his termination violated the Rehabilitation Act. As part of the relief ordered, the Commission directed the agency to investigate complainant's entitlement to compensatory damages; reinstate him retroactively; determine back pay; and consider disciplining the responsible management officials. Arnow v. United States Postal Service, EEOC Appeal No. 07A10023 (November 15, 2002).
Unnecessary Fitness-for-Duty Examination Violates the Rehabilitation Act. The Commission found that the agency violated the Rehabilitation Act, when it ordered complainant to undergo a fitness-for-duty examination and then suspended her for not submitting to the examination. The Commission noted that, irrespective of whether an employee is an individual with a disability, an agency may only make a disability-related inquiry or require a medical examination if it is job related and consistent with business necessity. The Commission awarded complainant $50,000 for non-pecuniary harm. Amen v. United States Postal Service, EEOC Appeal No. 07A10069 (January 6, 2003).
Complainant Unlawfully Denied Reasonable Accommodation. The Commission found that the agency violated the Rehabilitation Act when it failed to provide complainant, a deaf employee who uses sign language to communicate, with an interpreter during a safety talk. The Commission found no evidence to support a finding that the provision of interpreter services would have caused an undue hardship. EEOC also noted that the agency failed to provide evidence that it attempted to contract the services of an interpreter in contemplation of the safety talk. As part of the relief ordered, the Commission directed the agency to train its management officials as to their obligations under the Rehabilitation Act; to notify complainant of his right to submit objective evidence in support of his claim for compensatory damages; and to consider disciplining the responsible management official(s). Saylor v. United States Postal Service, EEOC Appeal No. 01A05281 (November 15, 2002); see also Holton v. United States Postal Service, EEOC Appeal No. 01991307 (November 7, 2002) (denial of services of interpreter for hearing impaired employee for presentation of new automation concept violated Rehabilitation Act).
Burden on Complainant to Establish Likely Vacancies. Complainant bears the burden of establishing likely vacancies in cases of reasonable accommodation involving reassignment. The Commission held that, in the reassignment context, an agency's failure to conduct either any search at all, or a broad enough search for a position, does not, by itself, result in a finding of discrimination. Instead, complainant must show that it is more likely than not that there were vacancies available, during the relevant time period, into which she could have been reassigned. McIntosh v. United States Postal Service, EEOC Appeal No. 01A15285 (January 13, 2003).
Harassment Based on Religion. The Commission found that complainant was subjected to religious harassment by an Assistant Manager for Administration (H1) and another clerk (H2) that was sufficiently severe and/or pervasive to alter the condition of her workplace. EEOC found that both H1 and H2 made unwelcome remarks to complainant for months, and that their remarks were derogatory and threatening. The Commission also noted that religious overtones pervaded the work environment. H1, for example, was known to inject religious statements and conversations into work-related situations. The Commission found the agency liable because it failed to take appropriate corrective action to prevent H1 from intimidating employees on the basis of religion. By way of relief, the Commission ordered training for all management officials involved in this case, as well as notification to complainant of her right to submit evidence in support of her claim for compensatory damages. Wallace v. Department of Commerce (Bureau of the Census), EEOC Appeal No. 01A15109 (January 23, 2003).
Sexual Harassment. The Commission found that complainant was subjected to hostile environment sexual harassment, when she was repeatedly subjected to comments of a sexual nature and requests for sexual favors by her supervisor for a period of several years, in addition to physical contact. Because this was a case of supervisory harassment, and it involved hostile environment harassment which did not result in a tangible employment action, the Commission considered the agency's liability for the supervisor's actions under the U.S. Supreme Court decisions in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998) and Faragher v. Boca Raton, 524 U.S. 775 (1998). The EEOC found that the agency was liable for the supervisor's harassment, since it had failed to prove that complainant unreasonably failed to avail herself of preventative or corrective opportunities provided, or to otherwise avoid harm. As part of the relief ordered, the Commission directed the agency to consider complainant's entitlement to compensatory damages. Diggs v. Department of the Army, EEOC Appeal No. 01A12480 (January 9, 2003).
Nonselection. The Commission affirmed an AJ's finding that complainant was subjected to reprisal discrimination. The Selecting Official was aware, by virtue of a notation on complainant's evaluation, of the prior EEO activity; and the interviewer abruptly terminated the interview after complainant responded affirmatively to the interviewer's question as to whether he engaged in prior EEO activity. The Commission further found that the record did not support the agency's assertion that it relied upon its policy not to rehire individuals terminated for cause, stating that the recommending official was not aware of such a policy and that complainant's former supervisor had recommended that he be rehired. As part of the relief ordered, the Commission directed the agency to retroactively place complainant in the position for which he had applied, or a substantially equivalent career position. EEOC also ordered the agency to pay complainant compensatory damages in the amount of $2,000. Smith v. United States Postal Service, EEOC Appeal No. 01A01538 (January 9, 2003).
Sanctions Finding of Discrimination Upheld. The Commission found that an AJ's issuance of a decision in favor of complainant was proper where the agency failed to produce the complaint file or show good cause for why it could not do so. The Commission noted that the AJ did not abuse his discretion in issuing the decision, given the agency's failure to comply with a Show Cause Order, which included a notice that failure to comply with the Order could result in a default judgment for complainant. The agency failed to offer any explanation to the AJ for its failure to respond. Rhinesmith v. Department of the Treasury, EEOC Appeal No. 07A10103 (January 28, 2003).
Violation of Older Workers' Benefit Protection Act (OWBPA). The Commission found that a settlement agreement violated the OWBPA when it failed to refer, in writing, to complainant's age discrimination claims and notify complainant of her right to consult with an attorney prior to signing the agreement. Hall v. Department of the Navy, EEOC Appeal No. 01A25074 (January 9, 2003).
Agreement Enforceable When Ratified by Complainant's Actions. In this case, the complainant rejected a written memorialization of the settlement terms to which the parties had purportedly previously agreed. Complainant had nevertheless accepted the agency's payment of $20,000 made pursuant to the purported settlement. The Commission found that, by accepting the money, the complainant had effectively nullified her revocation and ratified the agreement. In addition, EEOC found that the agency had clearly acted to its detriment in reliance upon the terms of the settlement. Further, the Commission found that complainant's acceptance of the agency's payment, coupled with the filing of her appeal 10 days later requesting reinstatement of her complaint, demonstrated her intention to both retain the benefits of the bargain, and appeal to the Commission claiming the agency had breached the agreement. Complainant thus acted as if the parties had a valid, enforceable agreement. Franke v. Department of Transportation, EEOC Request No. 05A20587 (January 3, 2003).
Settlement Offers are not Admissible. The Commission rejected complainant's argument that, by offering to settle her complaint for $100, the agency conceded liability. EEOC reaffirmed the legal principle that an offer of settlement by a party to a dispute may not be used as evidence of liability. Wiley v. United States Postal Service, EEOC Request No. 05A30146 (January 21, 2003).
EEO Contact Timely. Citing National Railroad Corp. v. Morgan, 536 U.S. 2061 (2002), the Commission found that a claim of hostile environment, in which some of the incidents occurred during 45 days of complainant's contact with an EEO Counselor, was timely raised. The Commission noted that the most recent of complainant's claims occurred within 45 days of complainant's initial EEO contact. Therefore, the Commission found complainant's entire hostile environment claim to be timely raised. Dobbins v. Department of the Army, EEOC Appeal No. 01A15248 (January 16, 2003).
Fear of Reprisal Will Not Toll Time Requirement. Finding complainant's EEO contact untimely, the Commission rejected her contention that she was afraid of retaliation. EEOC reaffirmed its case law that mere fear of reprisal is insufficient justification for extending the time for initiating EEO counseling. Roublow v. Department of Veterans Affairs, EEOC Request No. 05A01106 (January 3, 2003).
EEO Complaint Timely. EEOC found that the complaint was timely filed within 15 days of receipt by complainant's attorney of the notice of the right to file a formal complaint, despite being received at the attorney's address of record several weeks earlier. The notice was mistakenly addressed to another attorney. Townsell v. United States Postal Service, EEOC Appeal No. 01A22218 (January 9, 2003).
In order to state a claim under the Commission's regulations set forth at 29 C.F.R. Part 1614, a complaint must be within the purview of the EEO process; that is, it must allege employment discrimination on a basis set forth in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq (race, color, sex, religion, and national origin); the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq (aggrieved individual at least 40 years of age); § 501 of the Rehabilitation Act of 1973, 29 U.S.C. § 791 et seq (disability); or the Equal Pay Act of 1963 (EPA), 29 U.S.C. § 206(d) (1978) (sex-based wage discrimination). EEOC Regulation 29 C.F.R. § 1614.103(a) provides that complaints alleging retaliation prohibited by the foregoing statutes are also considered to be complaints of discrimination. Allegations that fail to state a claim are subject to dismissal under 29 C.F.R. Section 1614.107(a)(1).
To be cognizable under 29 C.F.R. § 1614.103, a claim must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. An agency must accept and process a complaint from any aggrieved employee or applicant who believes that he or she has been discriminated against by that agency. The Commission defines an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). With regard to claims alleging retaliation, the Commission has stated that adverse actions need not qualify as ultimate employment actions or materially affect the terms, and conditions of employment to constitute retaliation. Instead, the statutory retaliation clauses prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the complainant or others from engaging in protected activity. See Schneider v. United States Postal Service, EEOC Request No. 05A01065 (August 15, 2002), at note 2 (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998)).
The decisions set forth below illustrate some of the circumstances under which the Commission has considered whether a complaint states a claim within the meaning of its regulations. These selected decisions are not intended to be a comprehensive survey but, instead, have been included to provide the reader with recent examples of the Commission's determination as to whether and why certain claims are actionable; in other words, whether they are entitled to a finding on the merits with regard to whether discrimination occurred.
The Commission has generally held that complaints involving other administrative proceedings do not state a claim within the meaning of its regulations. For example, in Bell v. Department of Transportation, EEOC Appeal No. 01991806 (January 11, 2001), complainant alleged that the agency had discriminated against her because it had failed to ensure that records submitted to the Department of Labor in relation to her Office of Workers' Compensation Programs (OWCP) claim were accurate and complete. She also alleged that the agency had falsified documents in the process of controverting her claim. The Commission rejected complainant's argument that her claims stemmed from the agency's discriminatory act of submitting inaccurate information in the processing of her OWCP claim. The Commission noted that it has consistently held not actionable claims that the agency discriminated in a manner pertaining to the merits of the workers' compensation claim, for example, by submitting paperwork containing allegedly false information. See, e.g., Hogan v. Department of the Army, EEOC Request No. 05940407 (September 29, 1994) (reviewing a claim that agency officials provided misleading statements to OWCP would require the Commission to essentially determine what workers' compensation benefits the complainant would likely have received).
The Commission has also held that an allegation that agency officials delayed in processing the paperwork for a workers' compensation claim for a few weeks constitutes an impermissible collateral attack on the OWCP decision making process. Schneider v. United States Postal Service, EEOC Request No. 05A01065 (August 15, 2002). The Commission noted, in Schneider, that there was no evidence of a pattern or practice of discrimination in the processing of workers' compensation claims, and that the complainant did not raise a claim of hostile work environment. In addition, an allegation that a complainant was not approved for medical treatment despite having her claim accepted by the Department of Labor was found not to state a claim within the purview of EEOC regulations. See Dye v. United States Postal Service, EEOC Appeal No. 01A30060 (February 6, 2003) (stating that the proper forum to pursue the matter was with the Department of Labor, Office of Workers' Compensation Programs, and not with the Commission).
Similarly, claims involving an alleged violation of the Privacy Act or a union grievance procedure also generally do not state a claim for purposes of the EEOC regulations. The complainant, in Lambert v. Social Security Administration, EEOC Appeal No. 01A15184 (November 26, 2002), request for reconsideration denied, EEOC Request No. 05A30330 (February 6, 2003), contended that the agency violated the national union agreement and the Privacy Act, and controverted her workers' compensation claim. The Commission concluded that such issues failed to state a claim, stating that the EEO process cannot be used to lodge a collateral attack upon another administrative proceeding. The Commission noted that the proper forum for contesting the outcome of a workers' compensation claim was the Department of Labor, and that jurisdiction for Privacy Act claims rests with the U.S. District Court. An allegation that a complainant was not allowed to be present during a grievance meeting also does not state a claim, and, instead, was found to be a collateral attack on the grievance process. Spiwak v. United States Postal Service, EEOC Appeal No. 01991180 (January 26, 2001).
Remarks and comments, such as proposals to take disciplinary action, in the absence of a concrete agency action, generally do not state a claim. In Martin v. Department of the Treasury, EEOC Appeal No. 01A11050 (February 27, 2001), the Commission found that the complainant was not aggrieved as a result of a supervisor's proposal to deny him a transfer. Complainant acknowledged that the proposal was not carried out, and the record did not reflect that any action followed the remarks. Moreover, the Commission did not find that the alleged incidents were sufficiently severe or pervasive to alter the conditions of complainant's employment. The complainant in Reed v. Department of the Air Force, EEOC Appeal No. 01A24387 (February 19, 2003), raised claims concerning comments made in an electronic mail message, and statements made by a supervisor regarding which personnel would be hired for upcoming jobs. The Commission noted that it has consistently held that a remark or comment unaccompanied by concrete action is not a direct and personal deprivation sufficient to render an individual aggrieved for purposes of the EEOC regulations. Further, there was no evidence the complainant was subjected to any adverse actions as a result of the remarks in question. Similarly, in Sarven v. United States Postal Service, EEOC Appeal No. 01A30103 (February 11, 2003), the Commission held that an official discussion concerning a complainant's behavior, which was not recorded in any personnel or supervisory files, did not render the complainant aggrieved.
Nevertheless, a claim involving a proposed disciplinary action which becomes effective during the EEO counseling process does state a cognizable claim. Roberts v. United States Postal Service, EEOC Appeal No. 01A21360 (March 14, 2002). In Roberts, at the time the complainant contacted the EEO Counselor he had received a proposed suspension, which subsequently became effective during the counseling process. The Commission stated that when an individual received EEO counseling with regard to a proposed action which ultimately became effective, the otherwise premature claim merged with the effective action even if the complainant had not filed a formal complaint on that later action.
Generally, the Commission has held that issues concerning personnel actions, such as selection actions, transfers, reassignments, and details do state a cognizable claim. In the case of Vasquez v. Department of the Army, EEOC Appeal No. 01A24477 (January 29, 2003), the complainant was issued a notice of impending detail. The complainant stated that while she was not detailed as initially proposed, she was transferred to another position. The Commission found that complainant's transfer clearly affected a term, condition, or privilege of her employment which was sufficient to render her aggrieved. The Commission further stated, in Dixon v. Department of the Navy, EEOC Appeal No. 01A23545 (February 10, 2003), that complainant's nonselection for a position on a Selection Advisory Board stated a claim within the meaning of its regulations. The Commission noted that, even though the issue involved a collateral duty assignment, such an assignment is a condition or benefit of employment and the denial of such an opportunity renders an employee aggrieved. Finally, the Commission found that a complaint involving allegations that an individual was not rehired by the agency stated a claim of race and gender discrimination under Title VII. Clark v. Department of Transportation, EEOC Appeal No. 01A22197 (June 18, 2002). The Commission noted that the agency's assertions concerning complainant's willingness to accept the salary level of the position, and the existence of outside selections for the position, addressed the merits of the allegations, and, as such, were irrelevant to the procedural issue of whether the complainant stated a justiciable claim of discrimination.
In Smith, et al. v. Department of Defense, EEOC Appeal Nos. 01A24119 (February 11, 2003), the Commission consolidated 19 complaints which alleged that the agency denied the complainants an opportunity to apply for a particular vacancy announcement. Specifically, the Commission noted that the complainants stated that the agency closed the vacancy announcement knowing that in approximately two weeks a large number of black employees would meet the minimum educational requirements necessary to apply. The Commission found the act of closing the vacancy announcement was sufficient to render the employees aggrieved. As in Clark, the Commission stated that the agency's assertions that other announcements remained open for extended periods, and that workforce profiles showed that African-American employees were not under-represented in the particular field, addressed the merits of the claim and not the issue of whether the issue stated a cognizable claim.