Management Directive 110

PRIMA FACIE CASE

1. 1) Membership in protected group
2. 2) Complainant treated differently from similarly situated employees not in protected group
   1. a) Were compared employees in same chain of command as complainant?
   2. b) Were compared employees in same work unit as complainant?

OR

In the absence of comparative evidence, is there other evidence that indicates that the agency's actions may have been motivated by discrimination?^[1]

OR

Is there direct evidence that shows discriminatory intent?

REBUTTAL

What did the agency say was the reason for its treatment of complainant and the compared employees/applicants? How did the agency respond to other evidence, if any, of discrimination?

PRETEXT

Is there direct or circumstantial evidence that the agency's reason for its treatment of complainant is pretextual?

Appendix J-2 EEO-MD-110
MODEL FOR ANALYSIS
HIRING/PROMOTION

PRIMA FACIE CASE

1. 1)Complainant is a member of a protected group.
2. 2)Was there a vacancy?
3. 3)Did complainant apply?
4. 4)Was complainant qualified; was complainant rejected?
5. 5)Was the vacancy filled? If so, was the selectee a member of complainant's protected group?

OR

Is there direct evidence that shows discriminatory intent?

REBUTTAL

What did the agency say was the reason for rejecting complainant?

PRETEXT

Is there direct or circumstantial evidence that the agency's reason for rejecting complainant is pretextual?

PRIMA FACIE CASE

1. 1)Complainant is a member of a protected group.
2. 2)Was complainant qualified for the position s/he was performing?
3. 3)Was the complainant satisfying the normal requirements of the position?
4. 4)Was the complainant discharged or otherwise disciplined?
5. 5)Was the complainant replaced by an employee outside the protected group or was s/he singled out for discharge or discipline while similarly situated employees were retained or not comparably disciplined?

OR

Is there direct evidence that shows discriminatory intent?

REBUTTAL

What did the agency say was the reason for disciplining complainant?

PRETEXT

Is there direct or circumstantial evidence that the agency's reason for discipline or discharge of complainant is pretextual? For example, did the agency treat other individuals with similar performance problems more favorably than complainant?

Appendix J-4 EEO-MD-110
MODEL FOR ANALYSIS
RETALIATION

PRIMA FACIE CASE

1. 1)Had the complainant previously engaged in protected activity or opposed unlawful discrimination?
2. 2)Was the agency aware of complainant's activity?
3. 3)Was complainant contemporaneously or subsequently adversely affected by some action of the agency?
4. 4)Does some connection exist between complainant's activity and the adverse employ­ment decision (for example, the adverse employment decision occurred within such a period of time that a retaliatory inference arises)?

OR

Is there direct evidence that shows discriminatory intent?

REBUTTAL

What did the agency say was the reason for the adverse employment decision?

PRETEXT

Is there direct or circumstantial evidence that the agency's reason for the employment decision is pretextual?

PRIMA FACIE CASE -- Where Complainant Alleges a Failure to Provide a Reasonable Accommodation:

1. 1)Does complainant have a physical or mental impairment (for example, deafness; blindness; partially or completely missing limbs or mobility impairments requiring the use of a wheel chair; intellectual disability (formerly termed mental retardation); autism; cerebral palsy; major depressive disorder; bipolar disorder; post-traumatic stress disorder; obsessive compulsive disorder; schizophrenia; cancer; diabetes; epilepsy; HIV infection; multiple sclerosis; and muscular dystrophy) that is readily observable or where there is medical documentation of the impairment?
2. 2)Does this impairment, when active and not taking into account any mitigating measures employed by the complainant, substantially limit complainant's ability to perform a major life activity (for example, caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working) or substantially limits a major bodily function? If not readily observable then provide evidence on the activities affected, how they are affected, and the degree to which they are affected (can't do the activity at all, can only do the activity with assistive devices or equipment, can only do the activity for a limited period of time, etc.). The question of whether an individual meets the definition of disability under 29 C.F.R. § 1630.(c)(4) should not demand extensive analysis.
3. 3)Does the agency know of the complainant's disability?
4. 4)Is the complainant otherwise qualified (that is, does the complainant, with or without accommodation, meet the education, skills, and experience requirements of the job)?
5. 5)What are the essential functions, (for example, the outcomes that must be achieved by a person in that position, not the methods by which those outcomes are typically achieved) of the complainant's job?
6. 6)Did complainant request accommodation? What accommodation, if any, did the complainant suggest?
7. 7)What action did the agency take to identify possible accommodation or attempt accommodation? Did the agency make an individualized assessment of the complainant, comparing his/her qualifications and limitations with the job requirements? What actions did the agency take to consider the complainant=s suggested accommodations?
8. 8)If an accommodation has been identified, will this accommodation enable complainant to perform the essential functions of the job, that is, is it effective?
9. 9)Did the agency provide an accommodation?
10. 10)If the agency did not provide an accommodation, what reason has the agency given for its refusal?
11. 11)If the agency contends that a particular accommodation would impose an undue hardship on its operations, are these reasons sufficient to establish an undue hardship defense given:
    1. a) the overall size of the agency's program (the number of employees, number and type of facilities and size of budget);
    2. b) the type of agency operation (composition and structure of work force);
    3. c) the nature and net cost of accommodation.

Appendix J-6 EEO-MD-110
MODEL FOR ANALYSIS
DISABILITY--DISPARATE TREATMENT

PRIMA FACIE CASE -- Where Complainant Alleges Disparate Treatment

1. 1)Does complainant have a physical or mental impairment (for example, deafness; blindness; partially or completely missing limbs or mobility impairments requiring the use of a wheel chair; intellectual disability (formerly termed mental retardation); autism; cerebral palsy; major depressive disorder; bipolar disorder; post-traumatic stress disorder; obsessive compulsive disorder; schizophrenia; cancer; diabetes; epilepsy; HIV infection; multiple sclerosis; and muscular dystrophy) that is readily observable or where there is medical documentation of the impairment?
2. 2)Does this impairment, when active and not taking into account any mitigating measures employed by the complainant substantially limit complainant's ability to perform a major life activity (for example, caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working) or substantially limits a major bodily function? If not readily observable then provide evidence on the activities affected, how they are affected, and the degree to which they are affected (can't do the activity at all, can only do the activity with assistive devices or equipment, can only do the activity for a limited period of time, etc.). The question of whether an individual meets the definition of disability under 29 C.F.R. § 1630.(c)(4) should not demand extensive analysis.
3. 3)Does complainant have a record or history of a substantially limiting impairment (from which complainant may have recovered in whole or in part)?

   OR

   Was complainant regarded as having such an impairment (whether or not the complainant has an impairment or a substantially limiting impairment)?

4. 4)Does the agency know of complainant's disability?
5. 5)Is complainant qualified to perform the essential functions of the job with or without reasonable accommodation:
   1. Is complainant otherwise qualified (that is, does the complainant, with or without accommodation, meet the educational and experience requirements of the job)?
   2. What are the essential functions, (for example, the outcomes that must be achieved by a person in that position, not the methods by which those outcomes are typically achieved) of complainant's job?
   3. Can complainant perform the essential functions of the job with or without accommodation? If an accommodation is necessary, see Model for Analysis -- Disability -- Reasonable Accommodation, Attachment J-5.
6. 1)Was complainant treated differently from similarly situated employees who were not disabled or who had different disabilities?
   1. Were compared employees in the same chain of command?
   2. Were compared employees in the same work unit?

OR

Is there direct evidence which shows discriminatory intent?

REBUTTAL

What did the agency say was the reason for treating complainant differently than other similarly-situated employees who were not disabled or who had different disabilities?

PRETEXT

Is there direct or circumstantial evidence that the agency's reason for its treatment of complainant is pretextual?

PRIMA FACIE CASE

1. 1)Does complainant hold a religious belief which conflicts with employment requirements? (Note: only in the rarest of cases, where the evidence appears very clear that the complainant does not sincerely hold the religious belief or does not sincerely engage in the religious practices that may need an accommodation should an investigator challenge the sincerity of the belief or practice.)
2. 2)Has complainant informed his/her superior of a conflict?
3. 3)Has complainant been penalized for failing to comply with employment requirements?

REBUTTAL

1. 1)Belief or practice not of religious nature.
2. 2)Agency could not accommodate without undue hardship.

DUTY TO ACCOMMODATE -- RELIGIOUS COMPENSATORY TIME

To allow employees to work additional hours (overtime, compensatory time) to make up for the time required by their personal religious belief (Pub. L. No. 95-390, 5 U.S.C. § 5550a, "Compensatory Time Off for Religious Observances").

^[1]In this model and in the models set forth below, keep in mind the Supreme Court=s decision in O=Connor v. Consolidated Coin Caterer=s Corp., 517 U.S. 308 (1996), in which the Court ruled that comparative evidence is not an essential element of a prima facie case of discrimination. In the absence of such evidence, the complainant must come forward with other evidence sufficient to create an inference of discrimination.