COMMISSION HIGHLIGHTS

Digest of EEO Law, Volume XI, No. 5

I

REQUEST FOR A HEARING SHOULD HAVE BEEN HONORED Herron v. Office of Personnel Management, EEOC Request No. 05960561 (April 9, 1998).

Appellant filed his complaint of race, sex, and disability discrimination in August 1992. During the period when the agency was investigating the complaint, appellant requested a hearing before an EEOC Administrative Judge. The agency provided him with the investigative report in May 1994. In its transmittal letter, the agency acknowledged receiving the hearing request, but suggested that appellant might want to review the investigative report before making such a request. The letter also included notice to appellant that he had the right to request a hearing. The agency received no subsequent correspondence from appellant. The agency then issued a final decision on the complaint which included the statement that it had not received a hearing request.

The Commission decided that appellant should not have been required to make a second hearing request. The agency had acknowledged receiving his request for a hearing, observed the Commission. In addition, EEOC Regulation 29 C.F.R. §1614.108(f) provides that in the absence of the notice of the right to request a hearing, a complainant may request a hearing anytime after 180 days has elapsed after filing a complaint. That much time had clearly passed in this case. The Commission agreed with the determination in the appellate decision to vacate the agency's final decision, and directed the agency to forward appellant's complaint to an Administrative Judge.

II

DISMISSAL FOR FAILURE TO COOPERATE

Card v. United States Postal Service, EEOC Request No. 05970095 (April 23, 1998).

After appellant filed her complaint, the agency twice sent her requests to submit an affidavit. The requests pertained to her allegation that she was denied overtime because of retaliation, the sole allegation in her complaint that was accepted by the agency. Both of the requests asked appellant to complete an enclosed affidavit form, and contained warnings that a failure to respond could result in the dismissal of her complaint. Although appellant sent a response to the first request, her response did not answer any of the affidavit questions regarding the overtime allegation. She did not respond to the second request. The agency dismissed appellant's complaint for failure to cooperate. The Commission decided that the agency met the requirements of EEOC Regulation 29 C.F.R. §1614.107(g), which provides for dismissal when a complainant does not respond to a written request for relevant information, so long as the request included a notice of the proposed dismissal. In addition, the Commission noted that the regulation should be applied only when there is a clear record of delay or contumacious conduct by the complainant. The Commission found that appellant's actions amounted to a failure to cooperate. She never provided argument against the dismissal, observed the Commission, even though she is well-versed in the EEO process. The Commission affirmed the agency's decision to dismiss the complaint.

III

COMMON LAW OF AGENCY APPLIED TO DETERMINE THAT "VISITING FELLOWS" ARE NOT EMPLOYEES

Ma and Zheng v. Department of Health and Human Services, EEOC Appeals Nos. 01962390, 01962389 (May 29, 1998).

The two appellants, who are husband and wife and Chinese nationals, received awards as Visiting Fellows in the agency's National Institutes of Health Visiting Program. After several months in the program, they both filed EEO complaints. Appellant 1 alleged pregnancy-based discrimination, and Appellant 2 alleged race (Asian) and national origin (Chinese) discrimination. The agency dismissed the complaints on the grounds that appellants were not employees. On appeal, the Commission applied the common law of agency test, considering all aspects of the relationship between appellants and the agency, to determine whether the appellants should be deemed to be "employees" entitled to the protections of Section 717 of Title VII. Some factors could point to an employer-employee relationship, such as the agency's requirement that appellants perform research in the agency's laboratory, and the agency's provision of all needed materials and equipment. However, the Commission decided that the totality of circumstances did not establish the existence of an employer- employee relationship. Of particular importance, the Commission found, was that the terms of the Fellowships did not require appellants to complete specific assignments or perform a specified amount or quality of work. Also, the agency did not have the right to assign research projects to appellants. Considering these and other factors, the Commission found that the appellants should not be deemed to be employees. Instead, their Fellowships were similar to the grants and fellowships which students receive to provide support to continue their studies. The Commission affirmed the agency's dismissal of the complaints.

IV

DISPARATE IMPACT CLAIMED IN RIF

Stocker v. Department of the Interior, EEOC Petition No. 03970086 (May 7, 1998).

Petitioner filed an appeal with the Merit Systems Protection Board (MSPB) when he was separated from employment due to a Reduction-in-Force (RIF). He alleged that the RIF was discriminatory, contending that it had a disparate impact on white male employees who were over 40 years of age. Petitioner submitted statistics in support of his disparate impact argument. The statistics showed an increase in the percentage of whites and of white males after the RIF. Data on the race, sex, and age of the separated employees showed that of the 48 separated employees, 24 were over the age of 40. A total of 6 white males, all over age 40, were separated. Petitioner also contended that the agency had no legitimate reason for the RIF. The agency countered with evidence showing that it faced a shortage of funds. The MSPB issued a decision upholding the agency's action and finding no discrimination, and this petition to the Commission followed.

The Commission discussed the standards of proof under disparate impact theory, and found that even assuming some statistical disparity in the RIF's impact, the agency presented a legitimate business justification for its action. The Commission also noted that petitioner failed to show that an alternative other than the RIF existed which would have had less impact. The Commission concurred with the MSPB's finding of no discrimination.