COMMISSION HIGHLIGHTS

I

CONTACT WITH OFFICIAL LOGICALLY CONNECTED TO EEO PROCESS SATISFIES REQUIREMENT TO CONTACT EEO COUNSELOR

Cox v. Department of Housing and Urban Development, EEOC Request No. 05980083 (July 30, 1998).

Appellant contacted an EEO counselor on February 8, 1996, alleging that she was harassed and forced to resign on July 7, 1995 because of her disability (hearing impairment). The agency dismissed her complaint for failure to contact an EEO counselor within 45 days of the date of the discriminatory event. On appeal, appellant provided evidence that she wrote letters concerning the matter to the agency's Assistant Secretary in one of its regional offices, as well as to the agency's headquarters in Washington, D.C. Appellant also stated that she had contacted the agency's Regional Counsel concerning the matter in July 1995. The Commission noted that it has long held that a complainant may satisfy the criterion of counselor contact by initiating contact with an agency official logically connected to the EEO process, if the official is not an EEO counselor. In this case, the Commission found that appellant's contact with the named agency officials was sufficient to toll the time limit for contacting an EEO counselor. The Commission remanded the complaint for processing.

II

ATTORNEY'S FEES ADJUSTED TO MARKET RATE TO REFLECT "PUBLIC SPIRITEDNESS" OF PREVAILING PARTY'S ATTORNEY

Cooley v. Department of Veterans Affairs, EEOC Request No. 05960748 (July 30, 1998).

Appellant filed an EEO complaint alleging unlawful discrimination when she received an unfavorable work assignment. She was represented by an attorney, who had agreed to handle her case at a reduced hourly rate of $150, as opposed to the attorney's usual $250 hourly rate. In a fee agreement, appellant and the attorney agreed that should appellant prevail, the attorney's customary $250 rate would apply. The parties subsequently entered into a settlement agreement, which did not address the issue of attorney's fees. The attorney submitted a fee petition to the agency for $2,600 ($250 hourly rate for 10.4 billable hours). The agency's final decision on the fee petition found that the number of billable hours was reasonable, but reduced the hourly rate from $250 to $150, based upon the discounted rate contained in the fee agreement.

On appeal, appellant's attorney asserted that he had charged a reduced rate due to appellant's financial condition. The attorney stated that Federal employees often cannot afford to pay the "going commercial rate" for representation, and that is why he provides representation at a reduced rate. He argued that a lowered hourly rate with the possibility of payment at the customary rate was a practical means of taking Federal sector discrimination cases. The Commission noted that reasonable hourly rates are measured by the "prevailing market rates in the relevant community." It stated that the applicable rate for fee awards to public interest attorneys is the prevailing hourly rate for the community in general. The Commission added that the prevailing market rate should also be used to determine fee awards for private, for-profit attorneys who represent clients at reduced rates, reflecting "non-economic" goals. The Commission found that the attorney, who was a for-profit attorney, had provided sufficient evidence to establish that his customary hourly rate was $250. Further, the Commission found that the attorney had shown that the fee agreement was at a reduced rate based upon appellant's ability to pay. It concluded that the attorney had demonstrated "public spiritedness" in accepting appellant's case at the reduced rate, and ordered the agency to pay the attorney at the prevailing market rate of $250 rather than the reduced rate of $150 in the fee agreement.

III

EEO COMPLAINT FOUND TO BE COLLATERAL ATTACK ON AGENCY'S INTERNAL INVESTIGATIVE PROCESS

Wills v. Department of Defense , EEOC Request No. 05970596 (July 30, 1998).

Appellant, an employee of the Defense Commissary Agency (DCA), filed a complaint of discrimination against the agency on the basis of his race and color (Black) when its Criminal Investigation Division (CID) investigated his travel vouchers, resulting in agency debt collection actions and garnishment of his pay. The agency dismissed the complaint for failure to state a claim. On appeal, the Commission affirmed the agency's dismissal. The Commission subsequently denied appellant's request to reconsider. The Commission found that appellant's complaint was a collateral attack upon the CID investigation. Specifically, the Commission found that the actions complained of were inextricably intertwined with the findings of the CID, and were taken in response to the CID report. Noting that it had previously refused to entertain such complaints in that they were collateral attacks on CID investigations, the Commission found that appellant's complaint was properly dismissed for failure to state a claim.

IV

DISABILITY DISCRIMINATION FOUND IN FAILURE TO ELIMINATE OR REDUCE EXPOSURE TO TOBACCO SMOKE IN WORK PLACE

McNeil v. United States Postal Service, EEOC Request No. 05960436 (July 28, 1998).

Appellant alleged disability discrimination (migraine headaches) when the agency failed to prevent tobacco smoke from smoking areas around the facility from entering her work area. She provided medical evidence showing that exposure to tobacco smoke exacerbated her severe migraine condition and stated that this caused her to be absent from work. The agency removed appellant due to her absences. Appellant's physician, an allergist, had recommended that steps be taken to provide her a smoke-free work environment. The physician had also provided the agency with a letter indicating that appellant needed medically excused absences due to her migraines, and that tobacco smoke was a factor in triggering them.

The Commission found that appellant's migraine headache condition was a disability, and that there was a nexus between her disability in that 4 of 5 absences cited in the agency's removal notice were related to appellant's migraines. The agency argued that appellant was not a qualified individual with a disability, because regular attendance was an essential function of her job. The Commission, however, reminded the agency that such an argument would prevent any employee with a disability who is frequently absent for a disability-related reason from being considered qualified. The Commission found that appellant had produced sufficient evidence to show that her failure to be regular in attendance was due to her disability, and she was removed for these absences. Thus the burden falls on the agency, the Commission noted, to show that providing a reasonable accommodation would pose an undue hardship on the operations of its program. The Commission found appellant's requests for approval to use leave for absences caused by her disability constituted an implicit request that the absences not be used to support a disciplinary action. It further found that the agency had failed to show that excusing the appellant's absences related to her disability would cause an undue hardship. The Commission concluded that the appellant was discriminated against on the basis of disability when the agency failed to reasonably accommodate her by excusing the absences caused by her disability. The Commission further found that the agency discriminated against appellant when it failed to take steps to eliminate or reduce appellant's exposure to tobacco smoke in the work place. The Commission ordered reinstatement of appellant with back pay, and also directed the agency to take steps to eliminate appellant's exposure to tobacco smoke in the work place.

V

FILING A GRIEVANCE NOT A TRUE ELECTION IF MATTER NOT GRIEVABLE

Chai v. National Aeronautics and Space Administration, EEOC Request No. 05970016 (July 10, 1998).

Appellant alleged race (Asian) and national origin (Chinese) discrimination, as well as reprisal for prior EEO activity, when he was not selected for a position. The agency dismissed the complaint for having previously elected to pursue the matter through the negotiated grievance process. On appeal, appellant acknowledged that he had filed an earlier grievance on the matter, but asserted that an Arbitrator had determined that the matter was not covered by the agency's Collective Bargaining Agreement (CBA), and was therefore not grievable. He argued that the agency's dismissal for having elected the grievance process was improper.

On appeal, the Commission stated that, where an employee files a grievance prior to filing an EEO complaint, but the grievance is denied on the grounds that the subject matter of the grievance was not a grievable matter, the employee has not made a true election. In this case, the Commission found that an Arbitrator had ruled that appellant's grievance was not grievable under the terms of the applicable CBA. Because the subject matter of appellant's grievance was not grievable, the Commission found that appellant had not made a true election to proceed through the grievance process. It further found the invalidity of appellant's election to present a sufficient basis to toll the limitations period to contact an EEO counselor. The Commission reversed the agency's dismissal of the complaint and remanded it for processing.

VI

SANCTION ORDERED AGAINST AGENCY FOR BAD FAITH IN SETTLEMENT PROCESS

Epstein v. Department of Health and Human Services, EEOC Request No. 05970671 (July 2, 1998).

Appellant and the agency entered into a settlement agreement resolving appellant's complaint of discrimination before an EEOC administrative judge. The terms of the settlement were read into the record, which included a payment of $8,000 to appellant and a letter of apology to appellant signed by the Secretary of the agency. The agency subsequently advised appellant that it would not provide the promised letter of apology signed by the agency's Secretary. Appellant alleged that this was in breach of the settlement agreement, and appealed to the Commission.

On appeal, the Commission found that the record showed the agency had no intention of ever producing an apology from the Secretary. The Commission therefore found the agency in breach of the settlement agreement, and ordered reinstatement of the complaint as a remedy for the breach. The Commission also determined that at the time the settlement agreement was entered into between appellant and the agency's attorney, the agency's attorney purported to have the authority to promise a letter of apology, and appellant entered into the agreement in reliance on the promise. The Commission found that the agency attorney's representation that she could provide the letter of apology, when she knew that she had not yet received formal authorization for such a letter, constituted bad faith dealing. As such, it awarded attorney's fees as a sanction for the agency's actions during the settlement negotiations.

VII

APPELLANT'S ALLEGATIONS FOUND TO STATE CLAIM

Boone v. Department of the Navy, EEOC Request No. 05970375 (July 30, 1998).

Appellant filed a complaint based on race (white) and reprisal. The agency identified the issues as whether he was discriminated against when: (1) a superior suggested to appellant that he might have a racial bias against an agency official; and (2) appellant was counseled by the agency official. The agency dismissed the complaint on the grounds that it failed to state a claim, in that a remark, comment or counseling, unaccompanied by a concrete action, did not render appellant aggrieved. In its initial appeal decision, the Commission affirmed the agency's decision, because appellant had not shown that he had suffered a personal loss or harm as a result of the agency's actions.

In his request for reconsideration, appellant alleged that the agency had mischaracterised his complaint. Upon a careful review of appellant's complaint and its accompanying narrative, the Commission agreed. The Commission found that the appellant was actually complaining that he was being forced to report to a junior officer. Appellant had also listed in his narrative several specific incidents in which he believed that the junior officer had treated him disparately. These incidents of disparate treatment included unilaterally reassigning his staff's parking spaces, obstructing the timely processing of travel documents, restricting the issuance of conference room keys, and taking no action when another employee "verbally assaulted" appellant. Appellant also generally alleged that the agency officials intended to diminish his credibility and standing as a senior civilian employee. Based upon these allegations, and without making a finding on the merits of the complaint, the Commission found that appellant had stated a complaint of discrimination sufficient to warrant further processing. The agency's dismissal was reversed, and the complaint was remanded for processing.

VIII

ALLEGED FEAR OF REPRISAL NOT SUFFICIENT TO TOLL LIMITATIONS PERIOD

Duncan v. Department of Veterans Affairs, EEOC Request No. 05970315 (July 10, 1998).

Appellant alleged that he was not selected for a position in September 1994 in reprisal for his prior EEO activity. EEO counseling concluded in December 1994, but appellant did not file a formal complaint on that and other allegations until May 1995. The agency dismissed the non-selection allegation as untimely. On appeal, appellant asserted that he had failed to timely pursue the non- selection allegation because of his fear of agency retaliation for filing a formal complaint. The Commission observed that appellant had not related any concrete basis for fearing retaliation on the part of the agency. It noted that it had previously held that fear of retaliation was an insufficient justification for extending a limitations period. It pointed out that retaliation for EEO activity was prohibited, and that if appellant was subjected to such retaliation, he could file a complaint. The Commission also found appellant's assertion to lack credibility given his previous and present use of the EEO process. The Commission affirmed the agency's dismissal of the non-selection allegation as untimely.

IX

COMPLAINT FOUND MOOT

Kuo v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).

Appellant alleged race (Asian) and national origin (Chinese) discrimination, as well as reprisal for prior EEO activity, when he was denied preferred office space. The agency dismissed the complaint as moot, asserting that it had subsequently assigned appellant the preferred office space, and later had closed the facility in question. On appeal, the Commission noted that a complaint is moot when there is no reasonable expectation that the alleged violation will recur, and interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. In this case, the Commission determined that the agency's actions had rendered appellant's complaint moot. Specifically, the Commission observed that appellant was assigned the preferred office space at issue, and that the facility was subsequently closed. The Commission found that appellant had not shown any harm as a result of the alleged discrimination, nor did he request compensatory damages. The Commission concluded that appellant's complaint was moot and affirmed the agency's final decision.

X

COMMISSION EXTENDS TIME PERIOD TO FILE COMPLAINT DUE TO HURRICANE

Coleman v. Department of the Navy, EEOC Request No. 0598439 (July 30, 1998).

Appellant alleged race (Black), color and sex discrimination when she was allegedly coerced into resigning from her position. She received her notice of final interview from the agency's EEO counselor on August 23, 1996, and filed her formal complaint on September 12, 1996. The agency dismissed the complaint for failure to file her complaint within 15 days of receipt of the notice of final interview. On appeal, appellant alleged that she was late in filing her complaint due to a hurricane. She submitted newspaper articles providing information about the hurricane. This evidence showed that the damage from the hurricane was so widespread as to close postal delivery as of September 7, that the agency was in "destructive weather condition," that power lines were down as late as September 9, and that travel was difficult during the relevant time period. Appellant further asserted that her home had suffered damage due to the hurricane. The Commission found that the circumstances of this case justified extending the time limits for filing appellant's complaint. The agency's dismissal was reversed, and the complaint was remanded for processing.