The DIGEST Of Equal Employment Opportunity Law

Volume XVII, No.4

Office of Federal Operations

Fall Quarter 2006

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Inside

Selected EEOC Decisions on:

Article

A CASE UPDATE: AGE DISCRIMINATION

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(The Digest acknowledges the help of Pamela O'Leary in the production of the issue. - ED.)

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SELECTED EEOC DECISIONS

Abuse of Process

Abuse of EEO Process Found. The Commission found that complainant, a former employee, was abusing the EEO process by continuing to file complaints involving his nonselection for positions reserved for current employees and raising arguments that had been decided by two administrative tribunals. Further, despite the fact that the Commission and the Merit Systems Protection Board (MSPB) had found no discrimination in connection with complainant's prior removal, he continued to raise that argument in his current appeals to the Commission. Despite knowing that he was not qualified for the positions, complainant continued to apply and then file futile EEO claims with the agency. The Commission thus concluded that complainant was attempting to use the EEO process to retaliate against the agency. The Commission stated that it would not entertain complainant's nonselection claims, where current federal employment status was required, unless he could show such status or that non-status individuals were considered or selected. Stoyanov v. Department of the Navy, EEOC Appeal Nos. 01A60843, 01A61391, 01A61781, 01A62205, and 01A62852. (August 31, 2006), requests to reconsider denied, EEOC Request Nos. 0520061084, 0520061085, 0520061086, 0520061087, 0520061088 (October 31, 2006).

Adverse Inferences

(See also, "Sanctions," and "Findings of Discrimination," this issue --Ed.)

Adverse Inference Drawn in Nonselection Based on Race Where Agency Failed to Preserve Evidence. The Commission affirmed an EEOC Administrative Judge's (AJ's) summary judgment finding of race discrimination (African-American) by adverse inference regarding whether the agency articulated reasons for not selecting complainant. The agency had failed to produce the Merit Promotion File for the vacancy for which complainant was not selected and failed to produce the Official Personnel File (OPF) for the selectee. The Commission found that the AJ did not abuse herdiscretion because, after complainant filed his complaint, the agency failed to preserve all personnel records concerning the selection, as required under the Commission's regulations, i.e., 29 C.F.R. Section 1602.14. The AJ awarded complainant $3,500.00 in pecuniary damages and $11,600.00 in attorney's fees and costs. Sewell v. Department of Veterans Affairs, EEOC Appeal No. 0720030006 (September 27, 2006), request to reconsider denied, EEOC Request No. 0520070114 (January 5, 2007).

Class Actions

(See also, "Stating a Claim," and "Timeliness" this issue. -Ed.)

Class Member's Individual Complaint Allowed, Ordered Held in Abeyance. The Commission vacated the agency's decision dismissing complainant's complaint for failure to state a claim. The agency characterized the complaint as alleging disability discrimination when complainant did not receive a Notice of Personnel Action stating that he would not receive a step increase. The agency further found that complainant did not timely initiate EEO counseling with regard to his claim that there was a relationship between the Notice of Personnel Action and the issuance of a Notice of Removal. The Commission found that because complainant, a member of a pending class action, was unaware that he could file an individual complaint, his EEO Counselor contact was timely. The Commission ordered the agency to hold the complaint in abeyance, pending the outcome of the class case. Mindrup v. United States Postal Service, EEOC Appeal No. 0120040818 (October 30, 2006).

EEO Process--Hearings

Commission Upholds Testimony by Telephone. Finding Exigent Circumstances. The Commission found that the AJ properly allowed three witnesses to testify telephonically. Specifically, EEOC found that two witnesses were retired Federal employees who were not required to testify and could not be compelled to appear in person. Thus, the Commission found that there were exigent circumstances, given that the employees were willing to testify telephonically. Further, with regard to the third witness, the Commission found no specific issues of credibility that might have been affected by taking the testimony telephonically. Gregory v. Department of Defense, EEOC Appeal No. 01A50725 (July 7, 2006).

Abuse of AJ Discretion in Holding Telephonic Hearing, Where Credibility Issues Exist and Evidence of Exigent Circumstances is Lacking. The Commission found that an AJ abused her discretion in holding a telephonic hearing in a case involving sexual harassment, in which the outcome was, in part, impacted by the AJ's credibility determinations. Specifically, in relying on testimony that complainant engaged in behavior similar to the alleged harasser's, the AJ determined that the testimony of that individual, as well as the testimony of two other employees, was credible. According to the record, however, the individual had denied complainant's allegations for more than three years, and admitted during the hearing that he had not been telling the truth and had in fact engaged in the behavior cited by complainant. Thus, the Commission found that there were serious issues of credibility that required the AJ's personal observation of the witnesses' demeanor and conduct. Further, the Commission noted that there was no evidence of exigent circumstances that would require a hearing by telephone. Accordingly, the Commission remanded the matter for an in-person hearing. Garcia, Jr. v. Department of the Army, EEOC Appeal No. 01A40660 (September 28, 2006). (See also, the Spring 2006 Digest, for a more detailed discussion of the Commission's seminal decisions regarding the taking of testimony by telephone. -Ed.)

"English Only" Rule

Complainant Not Subjected to "English Only" Rule. Complainant (Hispanic) alleged that she was discriminated against when she was instructed not to speak Spanish, and that the agency's Language Guidelines for the Workplace only permitted employees to speak Spanish at lunch and on breaks. An AJ found that the agency's Language Guidelines permitted employees to speak other languages virtually at all times so long as it did not interfere with the agency's operations. Thus, the record failed to show that complainant was subjected to an "English only" rule. Further, while complainant was told to speak English by a supervisor on one occasion, the supervisor gave the instruction because another employee, to whom complainant was speaking, did not speak Spanish. Complainant did not receive any discipline, or otherwise suffer any adverse action as a result of the incident. Vindas-Krych v. United States Postal Service, EEOC Appeal No. 01A45939 (August 31, 2006).

Findings of Discrimination

--ADEA--

Age Discrimination Found in Nonselection. Complainant alleged that the agency discriminated against her based on age, 61, when she was not selected for the position of Technical Expert (TE), in favor of a much younger applicant (the selectee, 41). An AJ agreed, concluding that witness testimony supported the finding that the responsible management official (RMO) did not work directly with the selectee and did not personally observe the selectee's ability to perform the functions he purportedly relied upon. The AJ further concluded that RMO attempted to provide misleading information by suggesting that complainant's backlog and other performance issues created a basis for not selecting her. However, the record revealed that any alleged backlog or performance problems took place several months after the selection.

In addition, documentary evidence showed that complainant's work experience and awards were at least equal, if not superior, to the selectee's. Further, complainant possessed the same important qualities that RMO relied on in choosing the selectee. Moreover, the AJ noted that complainant's application contained information regarding her numerous performance awards, while the selectee's application did not contain such information. While the agency argued that the selectee had as many performance awards as complainant, the Commission noted that RMO was not aware of the selectee's performance awards at the time he chose the selectee.

With regard to discriminatory animus, the AJ concluded that RMO consistently selected younger applicants during the relevant period, e.g., RMO chose a 40-year-old external applicant over complainant, without an interview, and without having any first-hand knowledge of that selectee's work experience. The Commission found sufficient evidence in the form of testimony and documentation to establish that RMO consistently selected younger applicants over older ones.

By way of relief, the Commission ordered the agency to offer complainant the TE position or a substantially equivalent position, including any career ladder promotions she would have received had she accepted the TE position; back pay retroactive to the date of her nonselection, with interest, including seniority; expected promotions; cost of living and step increases; and appropriate benefits. (The Commission noted that compensatory damages and attorney's fees were not available to complainant under the ADEA.) Hawkins v. Social Security Administration, EEOC Appeal No. 07A50100 (July 7, 2006).

--Rehabilitation Act--

Disability Discrimination Found for Denial of Reasonable Accommodation to Hearing-Impaired Employee. Complainant cited several instances in which an interpreter was not provided to him during safety talks. During some occasions, the agency conducted "emergency" safety talks regarding anthrax as well as the events of 9/11.

The agency found complainant to be a qualified individual with a disability. In finding, however, that it did not discriminate against complainant, the agency noted that a sign-language interpreter was made available to complainant once a week so that he could participate in weekly service/safety talks. However, occasionally, the agency was required to give safety talks "immediately," which precluded the agency from obtaining an interpreter. Further, since complainant worked 11:00 p.m. to 7:30 a.m., it was difficult to obtain an interpreter for those hours. The agency also averred that complainant had been assisted in the past by co-workers. Additionally, when videos or interpreters were unavailable, the agency either provided complainant with a transcript of the meeting or an interpreter within 6-7 days.

The Commission found that denying complainant information with regard to possible health risks "during such turbulent times, which, for other hearing employees was urgently provided, was 'inexcusable.'" The Commission rejected the agency's assertion that other postal employees were available to assist complainant, in the absence of particulars as to the nature of the assistance and whether it was an effective accommodation. The Commission found provision of a transcript to be an ineffective accommodation, as it had ruled in a past decision involving complainant, since it did not provide complainant an opportunity to ask questions or take part in discussions. Finally, the agency did not explain why it would be an undue hardship to provide an interpreter on complainant's tour.

EEOC also rejected the agency's good-faith defense, and ordered the agency to conduct a supplemental investigation into complainant's entitlement to compensatory damages. Bratsch v. United States Postal Service, EEOC Appeal No. 01A400695 (September 15, 2006).

Commission Rejects Agency Argument that OPM Determined that Complainant was Medically Unsuitable for Position. (The underlying facts in this matter are set forth in extensive detail in the Summer 2006 issue of the Digest. -Ed.) The agency stated that OPM was the only agency with the authority to make the final decision on whether an agency could "pass over" an applicant who was veteran-preference eligible with a service-connected disability of 30% or more. OPM issued a final decision that complainant was not qualified for the Sandblaster position.

The Commission cited its precedent holding that, when a government agency decides to "pass over" for a position an applicant who is a veteran, while the decision has to be sustained by OPM, the agency that makes the initial decision to deny employment is liable for any actions of discrimination.

The Commission also found unpersuasive the agency's assertion that EEOC had engaged in impermissible fact finding. The Commission found that it had made permissible conclusions of law based on record evidence when it found the following: (1) the essential functions of complainant's Aircraft Worker position for a government contractor were equivalent to the Sandblaster position; (2) Doctor B and Supervisor A-1, who determined that complainant presented a direct threat, did not consider the fact that he had already worked in conditions similar to the Sandblaster position; (3) hiring complainant would not have posed a direct threat either to his safety or that of his co-workers; and (4) Doctor B's statements were contradictory and created the appearance that the Doctor's recommendations to Supervisor A-1 were not based on whether complainant posed a direct threat, but instead on a concern that attempting to remove him in the future would be a problem for the agency.

The Commission ordered the agency to offer complainant a position as Equipment Cleaner or a substantially equivalent position; back pay and other benefits. The Commission remanded the issues of compensatory damages and attorney's fees and costs to the Hearings Unit of the EEOC's Charlotte District Office. Smith v. Department of the Navy, EEOC Request No. 05A60898 (October 12, 2006).

Failure to Provide Reasonable Accommodation. The Commission initially found that complainant, who could lift no more than five pounds continuously and 10 pounds intermittently, was an individual with a disability. The Commission found that the agency failed to provide complainant with reasonable accommodation for approximately one month. After being off from work for a period of time, complainant was advised by her supervisor that she could be accommodated in the In-Plant area in which she had been working. When complainant attempted to return to work, however, she was told by the Acting Manager of the Injury Compensation Office that she could not work in that area. Complainant was reassigned to a different facility. The Acting Manager did not consult with complainant's supervisor prior to ordering her reassignment, and complainant asserted that the duties were outside of her medical restrictions.

Further, the evidence showed that complainant could have continued to work in the In-Plant area and that management was willing to accommodate her there. Thus, the Commission concluded that the agency failed to reasonably accommodate complainant when it reassigned her. The agency was ordered to pay complainant $25,000 in proven compensatory damages and provide training to the Acting Manager of the Injury Compensation Office. Zobel v. United States Postal Service, EEOC Appeal No. 0720050035 (November 28, 2006).

--Title VII--

Race Discrimination in Denial of Cash Award . All administrative employees except complainant, the only African-American, received awards in the relevant year. While the agency asserted that employees received awards every other year, with complainant receiving an award the year before, an agency official stated only that it appeared to be management's "style" to do so after he made a chart of awards given over several years. Further, although the agency cited concerns about complainant's performance and leave and attendance issues, the management official failed to mention that those issues played any role in the denial of an award. The agency was ordered to pay complainant the cash award she would have received and make an appropriate notation in her records. Cleveland v. Department of Justice, EEOC Appeal No. 07A60018 (June 19, 2006).

Gender Discrimination. The Commission found that complainant was subjected to gender discrimination when she was not selected for the position of Assistant Project Superintendent. According to the record, the Recommending Official reviewed the applications and submitted recommendations to a Leadership Council. However, in this case, none of the members of the Council was able to state with any certainty how the candidates were ranked, what was discussed with regard to various candidates, or even which members of the Council were present. Further, with a single exception, the Council members were unable to articulate the reasons the selectees were chosen over complainant. The Commission also noted the lack of documentation regarding the selection process and concluded that the agency failed to articulate a legitimate, nondiscriminatory reason for complainant's nonselection. The agency was ordered to retroactively promote complainant to the position, with appropriate back pay and benefits. Rodgers v. Department of the Navy, EEOC Appeal No. 01A54171 (September 19, 2006).

Same-Sex Harassment Found . The Commission found that, for approximately two years, complainant was subjected to sexual harassment when his co-workers and supervisors made inappropriate comments and gestures suggesting that he was homosexual. The Commission noted that the sexually-explicit remarks were based on his sex. Further, the presence of the sexually-explicit comments and graffiti directed at complainant, after he indicated that he found them offensive, were sufficiently severe and pervasive to create a hostile work environment. In addition, the agency failed to take effective remedial action even though it knew of the hostile environment. While complainant informed a management official of the incidents several months after they began, the official stated that he believed it to be a falling out between friends and essentially did nothing in response.

Further, after complainant again reported the harassment, the official did not take any serious action such as counseling the individuals involved or follow up to ensure that the comments had ceased. Finally, while the official contacted internal affairs after being advised of the graffiti, he was told that they could not take action without knowing the identities of the persons responsible; and the official took no further action to investigate the matter. Employees continued to make comments regarding complainant and graffiti continued to appear. Thus, the Commission concluded that the agency failed to take effective remedial action to end the harassment. The agency was ordered to pay complainant $5,000 in damages and attorney's fees, as well as distribute a written statement reiterating its sexual harassment policy. Cano v. Department of Homeland Security, EEOC Appeal No. 07A40081 (August 2, 2006).

Per Se Discrimination Found in Retaliatory Harassment. The Commission found that complainant was subjected to per se discrimination when her supervisor did not allow her to see her union representative to report alleged discrimination. Complainant had asked to see her representative on several occasions regarding an issue of reasonable accommodation (complainant had filed a complaint under both Title VII and the Rehabilitation Act); however, her supervisor either denied her requests or delayed the meeting until near the time complainant was to leave work. Further, her supervisor made various harassing statements to complainant, including asking complainant when she would bid out of the unit and reprimanding her for going to the workers' compensation office. The Commission noted that by violating complainant's right to pursue remedies for possible discrimination, the agency's actions constituted retaliatory harassment. The agency was ordered to pay complainant $3,000 in damages and take appropriate action to ensure that retaliation did not recur. Lee v. United States Postal Service, EEOC Appeal No. 01A51082 (July 7, 2006), request for reconsideration denied, EEOC Request No. 0520060971 (September 11, 2006).

Joinder of Agencies

Agencies Joined as Respondents . Complainant, while on duty at a facility of the United States Postal Service (USPS), was allegedly harassed by an employee of the Department of Homeland Security (DHS). Complainant alleged that the DHS employee made numerous racially and sexually derogatory statements and gestures toward her in the workplace. The Commission found that the alleged remarks, coupled with the DHS employee's alleged gestures and sexual touching, were sufficiently severe or pervasive to alter the conditions of complainant's employment such as to state a claim of harassment. The Commission ordered both USPS and DHS to process the remanded claims. Hendrix v. United States Postal Service, EEOC Appeal No. 01A60041 (February 27, 2006).

Jurisdiction

(In the following cases, the Commission found that complainant met the definition of "employee." See also, "Stating a Claim," this issue. -Ed.)

Agency Found to Be Joint Employer. Complainant worked as an occupational therapist for the agency and received agency-specific training, as well as equipment, supplies, and workspace from the agency. She filed a complaint alleging that she was subjected to gender discrimination when she was asked to change her time and attendance and ultimately was terminated. The Commission noted that, while a private management services firm listed complainant on its payroll; withheld taxes; and provided insurance and retirement benefits, the agency exercised sufficient control over complainant's employment to qualify as a joint employer. Specifically, the agency provided training, supervision, workspace, and equipment, and maintained careful records of complainant's hours and absences. Further, an agency supervisor exercised considerable supervisory authority over complainant. Finally, the agency's policy for occupational therapists stated that the contract was intended to create an employer-employee relationship between the agency and the care provider. Chamberlain v. Department of the Army, EEOC Appeal No. 01A61315 (June 26, 2006).

Complainant Qualifies as Agency Employee. Complainant, a physician, was hired as a fee-based practitioner, working under a subcontractor agreement to provide medical examinations for the agency. She filed a formal complaint raising various issues of gender and reprisal discrimination. The Commission found that the agency exercised sufficient control over complainant's position for complainant to qualify as an employee for purposes of Title VII. Specifically, complainant was required to perform her duties in accordance with agency policies and regulations, and work under the general supervision of the agency's Chief Medical Officer. Further, complainant was required to abide by agency bylaws and medical regulations with regard to training, maintenance of records, her performance evaluation, and release of medical information. Finally, the agency paid complainant's wages, provided her with a worksite, materials, equipment, and supplies, and made determinations about her scheduling. Gaines v. Department of the Army, EEOC Appeal No. 01A53152 (July 6, 2006).

Mixed Cases

Background Claims Not Mixed . The Commission reversed an AJ's finding that discrimination claims (assignment beyond medical restrictions and denial of work on a bid assignment), which led to alleged constructive discharge, were inextricably intertwined with a mixed case appeal before the Merit Systems Protection Board (MSPB). The Commission cited to an amendment to its Management Directive 110, Management Bulletin 100-1 (October 24, 2003), stating that a series of non-mixed events leading to a claim appealed to the MSPB are not in themselves appealable to MSPB. Rather, these claims are background for the MSPB case and the Commission has jurisdiction to process them. The Commission remanded the matter for a hearing before an EEOC AJ. Greenidge v. United States Postal Service, EEOC Appeal No. 01A52532 (September 27, 2006).

Petitions For Enforcement

Petition Granted . The Commission granted complainant's petition for enforcement, finding that he was entitled to back pay until the date on which he returned to work. In the previous appellate decision, the Commission affirmed the AJ's finding that complainant had been subjected to discrimination based on his religion, age, disability, and prior EEO activity when he was terminated. The Commission ordered the agency to reinstate complainant (petitioner) and pay him appropriate back pay and benefits. While the agency asserted that petitioner was entitled to back pay only for the period ending with an Arbitrator's award of reinstatement without back pay, the Commission concluded that petitioner was in fact entitled to back pay until the date on which he was returned to work. Arnow v. United States Postal Service, EEOC Petition No. 0420060018 (November 16, 2006).

Remedies

Purpose of Ordering Training is Instructive, Not Punitive . In a case involving pregnancy discrimination, an AJ found that complainant had been subjected to a hostile work environment based on her gender and awarded her $30,000.00 in compensatory damages. The agency adopted the AJ's decision but rejected implementation of the AJ's order to provide training to supervisors, managers, and employees. The Commission affirmed the AJ's order that all personnel at the facility receive training because the responsible management official's (RMO's) conduct was observed by many and continued unabated. Therefore, it appeared that staff at the facility was not aware that the RMO's conduct violated the Pregnancy Discrimination Act. The Commission concluded that the purpose of training was not to punish individuals for past discriminatory conduct, but to educate personnel to ensure the rights of pregnant individuals to be free from unlawful harassment. Wade v. Department of Justice (Bureau of Prisons), EEOC Appeal No. 07A60057 (May 6, 2006), request to reconsider denied, EEOC Request No. 05A60813 (August 23, 2006).

Offer of New Position Must Be "Agreeable" to Complainant Under AJ's Order . An AJ found that complainant, a PS-6 Clerk at the agency's Lancaster, Pennsylvania (PA) District Office, was discriminated against on the basis of age when she was not selected for the position of Secretary, Operations Program Support (OPS) in the Lancaster District Office (the Position). By way of relief, the AJ ordered, in relevant part, that the agency must place complainant in the position of OPS or a comparable position within a reasonable commuting distance from her home, or into a comparable position in a location within the agency that is agreeable to complainant. The AJ stated that this included, but was not limited to, the Lancaster (PA) District or facility or the Harrisburg (PA) District or the Philadelphia (PA) District, since the Lancaster District would be or had been divided due to a reorganization within the agency between the Harrisburg District and the Philadelphia District.

The agency issued a final order adopting the AJ's decision and offered to place complainant in the position of Secretary to the Postmaster at the Harrisburg District Office (New Position). Complainant accepted the position, subject to three conditions: (1) no loss of seniority rights; (2) no loss of retreat rights for one year; and (3) reimbursement for the additional mileage for complainant's commute between her home and the Harrisburg facility for one year. The agency rejected these conditions and complainant appealed to EEOC.

On appeal, complainant argued that, if she was not permitted to keep her current seniority and retreat rights, and if she was not reimbursed for additional mileage, the New Position offered by the agency was not substantially equivalent to the Position. Specifically, complainant claimed that a transfer would adversely affect her eligibility for vacation, bidding on other positions, and other job benefits. Complainant disputed the agency's contention that the Position would have been "excised&" due to the consolidation or that it would violate the Collective Bargaining Agreement (CBA) to afford complainant the seniority rights she requested. Complainant argued that, under the CBA, when one installation is consolidated with another installation, each employee shall be involuntarily reassigned to the continuing installation without loss of seniority in the employee's craft or occupational group. Complainant averred that this CBA provision was applicable to the Position in the instant case because the Lancaster District was consolidated with the Philadelphia and Harrisburg Districts. She argued that she was entitled to the same retreat rights she had in her current position, and would have had in the Position absent the discrimination.

In response to complainant's appeal, the Commission found, in pertinent part, that the agency had failed to comply with the AJ's order to place complainant in a PS-6 Secretary OPS position "agreeable to her," in terms of its location. The Commission found that the offer of the New Position was not agreeable to complainant because the agency had rejected her conditions that she retain her seniority and retreat rights and be paid mileage for the extra 300 miles added to her commute each week. Further, the Commission found complainant's concerns to be reasonable.

The agency requested the Commission to reconsider its previous decision, arguing in relevant part that, had complainant been awarded the Position, it would have been eliminated when the Lancaster District was merged. She would have been reassigned, at that time, to the Lancaster Plant, as an unassigned regular clerk. The agency argued that the "agreeable" requirement was contrary to the Commission's regulations and previous rulings that the position be a "substantially equivalent" position.

In denying the agency's request, EEOC noted that the AJ's decision required the agency to place complainant not only in a position "comparable" to the Position in terms of duties, but also required that the position be "agreeable" to complainant, in terms of its location. The Commission opined that, if the agency disagreed with the AJ's remedies, it should have filed an appeal pursuant to EEOC's regulations. However, the Commission pointed out, in its Final Action the agency stated that it would implement the AJ's decision. The Commission therefore ordered the agency to place complainant in a PS-6 Secretary OPS position, or comparable secretarial position in a location within a reasonable commuting distance from the complainant's home, or any other location agreeable to complainant with the agency including, but not limited to, the Lancaster District or facility, the Harrisburg District, or the Philadelphia District. Black v. United States Postal Service, EEOC Request No. 0520050180 (December 11, 2006).

Sanctions

Sanctions Upheld . Complainant filed a formal complaint alleging discrimination on various bases and requested a hearing before an AJ. The AJ, however, dismissed complainant's request for a hearing, stating that she failed to respond to an Acknowledgement and Scheduling Order instructing her to file various pre-hearing submissions. The Commission found the sanctions proper, noting that the AJ issued a Show Cause Order and complainant failed to show good cause for her failure to comply with the AJ's order. Martin v. United States Postal Service, EEOC Appeal No. 01A62069 (June 16, 2006).

Settlement Agreements

Agreement Void . The Commission found that the settlement agreement into which the parties had entered was void for lack of consideration. The agreement provided for the agency and complainant to arrive at a list of duties that he could perform. Given that the agency's duty to provide a detail assignment was triggered only once the parties established the list of duties, the consideration was illusory and the agreement merely "an agreement to agree." Thus, the Commission ordered the agency to reinstate the complaint for processing. White v. Department of the Air Force, EEOC Appeal No. 01A62145 (July 18, 2006).

Mutual Mistake Renders Agreement Unenforceable . The parties agreed that, after complainant submitted documentation to show that his daughter was temporarily disabled under the Rehabilitation Act, on a specific date, a named agency employee would enter a leave adjustment to enable complainant to use sick leave for dependent care instead of annual leave. The employee would also work with her (the employee's) management team to ensure that employees received Family Medical Leave Act (FMLA) packages and to verify that children were under 18, or over 18 with a disability covered by the Rehabilitation Act, in order for sick leave to be used for dependent care. After complainant submitted medical documentation, the agency determined that his daughter was not disabled and, therefore, complainant was not entitled to leave under the FMLA, which provided for dependent care leave for minor children or children over 18 who are disabled. Complainant alleged that the agency breached the agreement when it did not reinstate eight hours of sick leave that he had used for the emergency care of his daughter.

On appeal, the Commission determined that the agreement was void as a matter of law. Specifically, the Commission found the agreement to be unenforceable because the parties erroneously assumed that the Rehabilitation Act offered guidelines for "temporary" disabilities. Thus, because of the mutual mistake that was material to the agreement, it was impossible for there to be compliance with its terms. Fowble v. United States Postal Service, EEOC Appeal No. 01A60527 (July 20, 2006).

Breach Found When Confidentiality Provision Violated . Complainant and the agency entered into a settlement agreement, which stated in relevant part that the parties agreed to keep the terms of the agreement confidential except as otherwise required by law and necessary to carry out the terms of the agreement. The Commission found that the RMO violated the confidentiality provision when he sent cover letters to other agency officials that used language which implied that a settlement agreement may have been the reason for the RMO's transfer recommendation. Further, the Commission found that the cover letter copied verbatim the terms of the agreement and determined that it unnecessarily revealed the existence and contents of the agreement and undermined the efficacy and purpose of the transfer recommendation. Due to this and other breaches of the agreement, the agency was ordered to reinstate complainant's EEO complaint for processing. EEOC also noted that complainant was not entitled to any relief other than that contained in the Commission's order to remedy the breach; however, as complainant was a prevailing party, she might be entitled to attorney's fees related to the adjudication of her breach provision. Dunning v. United States Postal Service, EEOC Appeal No. 01A52506 (June 13, 2006).

Intervening Events Negate Compliance Requirement . In the previous decision on complainant's settlement agreement breach claim, the Commission found that the agency had breached multiple provisions of the agreement and remanded the complaint to be reinstated. In its request for reconsideration, the agency argued for the first time that a subsequent settlement agreement between the parties released the agency from all of complainant's pending claims. Although the Commission denied the agency's request, EEOC found that, in light of the intervening events, the agency was not required to comply with the order set forth in the previous decision. Greene v. United States Postal Service, EEOC Appeal No. 01A54924 (November 15, 2005), request for reconsideration denied, EEOC Request No. 05A60369 (February 7, 2006).

Breach Found When Agency Fails to Comply With Plain Meaning of the Agreement's Language . The settlement agreement provided that complainant would attempt to bid on five or more positions as they became available. She would withdraw all of her existing complaints of discrimination if she received a bid position by December 21, 2004. Complainant alleged noncompliance when she did not receive a bid position and her complaints were not reinstated. The Commission found lack of agency compliance because the jobs complainant bid on were contingent on her passing qualifying examinations, which she failed. The Commission found that the plain meaning of "receive a bid job by December 31, 2004," in the agreement, was being awarded the position and not, as occurred, merely being conditionally offered the job. The Commission ordered the agency to reinstate complainant's EEO complaint for processing from the point at which processing ceased and to otherwise treat the settlement agreement as null and void. Wray v. United States Postal Service, EEOC Appeal No. 0120063964 (November 20, 2006)

Breach Found, Reinstatement of Complaint Ordered . According to the settlement agreement, complainant, a supervisor, was to work on a route inspection team for approximately six to seven months and then be assigned other duties. The Commission found that the agency was not in compliance with the settlement agreement when it placed complainant on a route inspection team for only two days. While the agency initially placed complainant on a route inspection team, it cancelled the action after two days. The Commission noted that the agency failed to show why it did not place complainant on a subsequent team. The Commission found that, while complainant's placement on the team was not intended to be permanent under the agreement, two days was far less than the six to seven months stated. While complainant sought specific performance of the agreement's terms, she also sought reinstatement of her complaint. The Commission found the latter to be the more appropriate remedy. Driscoll v. United States Postal Service, EEOC Appeal No. 01A52063 (July 21, 2006).

Breach Found: Specific Performance Ordered . The Commission found that the agency had failed to formulate a method whereby work was equitably distributed among staff, including complainant, as required by the settlement agreement. Complainant had alleged that the formulation favored a female co-worker and that he had less of a particular assignment than he had when he filed his formal EEO complaint. EEOC found that the agency altered complainant's duties after terms of the agreement were implemented, but did not alter coworkers'. The Commission ordered the agency to reformulate its method whereby all work was equitably distributed among staff, including complainant. Heckathorn, Jr. v. Department of the Interior, EEOC Appeal No. 01A60365 (September 13, 2006).

Stating a Claim

(In the following decisions, the Commission found that complainants' claims were cognizable. -- Ed.)

Chamberlain v. Department of the Army, EEOC Appeal No. 01A45313 (March 16, 2006); and Gaines v. Department of the Army, EEOC Appeal No. 01A53152 (July 6, 2006) (The underlying facts are discussed above under "Jurisdiction." -- Ed.)

Ortiz v. United States Postal Service, EEOC Appeal No. 01A60803 (April 18, 2006) (claims that the RMO threw complainant's chair; yelled, screamed and swore at him; among other acts of violent or intimidating behavior, sufficient to create hostile work environment.)

Downs v. Department of Transportation , EEOC Appeal No. 01A55432 (February 6, 2006) (cancellation of vacancy announcement, while not ordinarily actionable, is cognizable where complainant claims the cancellation was done for a discriminatory motive, in this case alleged age discrimination.)

Moreno , Jr. v. United States Postal Service, EEOC Appeal No. 01A61143 (May 24, 2006) (claim of harassment actionable where complainant learns that his supervisor allegedly engages in repeated attempts to turn people against him, including telling personnel that complainant was a thief and a liar.)

(In the decisions below, the EEOC found that complainant's claims were not cognizable.-Ed.) Durand v. Department of Health and Human Services, EEOC Appeal No. 01A62558 (August 9, 2006) (closing of vacancy announcement and not re-advertising it is not actionable; but cf. Downs v. Department of Transportation, cited above.-Ed.)

Loyd v. Department of the Army, EEOC Appeal No. 01A60406 (July 18, 2006), request to reconsider denied, EEOC Request No. 05A61005 (September 15, 2006) (rescission of employment based on unfavorable pre-employment security review; Commission precluded from reviewing requirement for security clearances and substance of determinations of security clearances.)

Robinson v. Department of Veterans Affairs, EEOC Appeal No. 01A62801 (August 3, 2006) (statement by doctor, who came up to complainant's desk, that he was there "to give a semen sample," while inappropriate comment to her, did not rise to the level of actionable harassment.)

Caudill v. Department of the Navy, EEOC Appeal No. 01A53574 (July 28, 2006) (agency description of complainant's employment status to finance company, resulting in higher interest rate on his loan, did not cause harm to term, condition or privilege of employment for which there was a remedy.)

Timeliness

Laches Applied . On May 5, 2005, complainant initiated contact with an EEO Counselor, claiming that, on March 19, 1982, management at the activity failed to authorize her claim for disability retirement. In affirming the agency's dismissal of her complaint on the grounds of untimely EEO Counselor contact, the Commission applied the doctrine of laches, an equitable remedy, and found that complainant failed to act with due diligence. Further, complainant provided no persuasive evidence to justify waiving the applicable time limitation of 45 days, where her EEO contact came 13 years after the alleged incident. Rodillas v. Department of the Navy, EEOC Appeal No. 0120060436 (November 15, 2006).

Laches Not Applied . (The substance of this case was discussed under "Settlement Agreements," above. -Ed.) The agency argued that complainant did not timely raise her claim of breach and was well aware of the time limit, as it was stated in the settlement agreement. The Commission declined to find that complainant failed to meet regulatory timeliness requirements because the record did not show that she had notice of them. Specifically, the Commission found that the settlement agreement language referred to by the agency did not notify complainant of the 30-day time limitation within which to raise claims of noncompliance with the agency; nor did the agency's letter to complainant, finding that it was in compliance with the agreement, contain appeal rights to the Commission. Moreover, the Commission found that complainant did not wait so long that laches would attach to her appeal. Wray v. United States Postal Service, EEOC Appeal No. 0120063964 (November 20, 2006).

Reasonable Suspicion . Complainant suffered a break in service because her selection papers were not timely processed, causing her to lose pay retention rights. She filed an EEO complaint alleging gender discrimination. The agency dismissed the complaint on the grounds that complainant failed to contact an EEO Counselor in a timely manner. On appeal, the Commission noted that, while complainant learned that she had lost her pay retention rights in October 2005, she was told later that management had timely processed selection papers for two male employees who avoided the loss of "safe pay." Thus, complainant did not reasonably suspect discrimination until that time. Lampi v. Department of Transportation, EEOC Appeal No. 01A62261 (June 16, 2006). See also, Hill v. Department of the Air Force, EEOC Appeal No. 01A62164 (June 26, 2006) (complainant received alleged discriminatory performance appraisal in February 2004, and was told the rating would not be changed; however, in September 2005, she learned management changed the evaluations of several co-workers; thus, her October 6, 2005 EEO contact was timely.)

A CASE UPDATE: AGE DISCRIMINATION
(An Update of Recent Commission Decisions)

DIRECT EVIDENCE OF DISPARATE TREATMENT FOUND

In Tellez v. Department of the Army,¹ the Commission found that complainant was subjected to age discrimination when he was not selected for the position of Supervisory General Engineer. Complainant, a 59-year-old Missile Engineer, applied for the position through agency's automated resume system. Subsequently, the agency chose a younger individual (selectee) for the job. The Selecting Official stated that he considered each candidate's ability to manage a large and complex organization, as well as their engineering experience, and based his decision on his personal knowledge of each candidate's work history. However, the Selecting Official acknowledged that he did not conduct interviews, and did not have documentation to support his selection. Further, the highest ranking management official at the facility (Technical Director) referred to discussions regarding the aging workforce, gaps in technology knowledge, and the need to bring in new employees. The Technical Director stated that he told all Directors that it was an issue of getting "younger blood" into the organization primarily, at the entry level, to fill the voids that were being left by people who were retiring.

The Commission found direct evidence of age discrimination. The Technical Director stated that the agency specifically sought to hire younger employees into entry level positions, and stated that younger people are more intelligent and technologically savvy than those in older age groups. Further, the Selecting Official had been heard to espouse a policy of hiring and promoting "younger blood," and pressured others to select younger employees for promotions and certain assignments. The Commission further noted that senior managers considered age an important factor in employment decisions as part of the agency's"succession plan," and conveyed that sentiment to middle and lower management. Nevertheless, the Commission found little evidence that the agency engaged in the sophisticated analysis needed for proper succession planning as detailed by the Office of Personnel Management. Instead, management officials simplistically developed the view that succession planning meant that younger employees were better than older employees, and used age as a barrier in its promotion decisions. The Commission then concluded that the agency failed to prove, by a preponderance of the evidence, that it would have made the same decision even if it had not considered the impermissible factor of age. As noted, although the Selecting Official stated that he considered a number of criteria in reviewing the candidates' applications, the record lacked objective evidence to support the selection. Further, the record showed that the Selecting Official espoused a policy of hiring and promoting younger employees within the agency.

INDIRECT EVIDENCE OF DISPARATE TREATMENT FOUND

The complainant, in Carver v. Department of Justice,² alleged that his age (46 years) was the determinative factor in the agency's decision not to select him for the position of Assistant United States Attorney (AUSA). According to the record, complainant worked as an AUSA for nine years, and retired from the Fraud Unit in 1994. In 1996, complainant met with the Selecting Official and advised her that he was interested in returning to the office, and applied for the subject position. Complainant was chosen as one of five finalists, and interviewed by the Selecting Official and a seven-member hiring committee. The Selecting Official stated that she did not consider complainant further because she was dissatisfied with his performance during the interview. However, four or five members of the hiring committee recommended complainant for the position. Subsequently, the Selecting Official chose another candidate who was 13 years younger than complainant.

On appeal, the Commission ultimately found that the reason given by the agency for complainant's non-selection, that is his performance during the interview, was a pretext for age discrimination. According to the record, there were no witnesses present when the Selecting Official interviewed complainant. Further, the Administrative Judge found that the Selecting Official's testimony, that complainant's performance during the interview was a major consideration in her decision, was not credible. Specifically, a former agency employee testified that the Selecting Official advised him, prior to the interview, that she would not rehire complainant, stating that there were enough people in the office with complainant's level of experience. Further, the Commission noted that the Selecting Official repeatedly stated that she wanted to create a "junior varsity" category of attorneys who would come into the office with less experience and who were not close to retirement. The Selecting Official also described the Fraud Unit as a group of employees with lengthy tenures, who were too slow, and had done their work in a particular way for a long time and did not want to change. The Commission noted that this description amounted to a virtual list of common stereotypes of older workers. Thus, the Commission concluded that the record showed that complainant was not selected for the position because of his age.

The complainant, in Jennings v. Department of the Navy³, was terminated during his probationary period following an altercation with a co-worker. According to the record, complainant, who was 55 years old, pushed the co-worker after he called complainant a name and came within inches of complainant's face with his fists clenched. The co-worker then tripped and fell. The Director initially decided to discipline both employees. However, the Director left the facility shortly thereafter, and the Deputy Director terminated complainant and imposed no discipline on the co-worker. While the agency asserted that complainant was the aggressor in the incident, the record showed that the co-worker had repeatedly directed improper conduct towards complainant, such as addressing complainant as "old man," and "grandpa," sticking his finger in complainant's face, and attempting to run into complainant with a forklift. Complainant and other employees reported the incidents to the supervisor, who merely advised complainant that he would have to learn to "live with" the behavior. The Commission noted that management had ample opportunity to initiate an investigation or disciplinary proceeding against the co-worker for his ongoing harassment of complainant, but chose to do nothing. Further, the evidence showed that, as to the incident in question, it was the co-worker who was the instigator of the altercation. Finally, shortly before complainant's termination, the Deputy Director attended several management meetings that included discussions about the need to reduce the age of the workforce at the facility. Thus, the Commission found that complainant was subjected to age discrimination with regard to his termination.

In Kruecke v. Department of Veterans Affairs,⁴the Commission found that complainant was subjected to age discrimination when she was denied performance opportunities and forced to resign. Complainant, a 67-year- old Staff Nurse, began working under a new supervisor in 2002. Subsequently, for the first time in her career, complainant received a critical performance appraisal, and was placed on a performance improvement plan for 60 days, during which time agency managers observed her work on the computerized record keeping and medication tracking systems. The individuals who observed complainant's work recommended that she receive additional training. The supervisor, however, failed to provide her with training as recommended, and issued her a notice of proposed discharge. Complainant chose to retire in lieu of being terminated.

On appeal, the Commission noted that a younger nurse who experienced similar performance problems was provided with additional training opportunities. In addition, the record showed that the agency exaggerated the depth of complainant's performance deficiencies, and kept critical information from her, such as one of the observer's assessment and recommendation to improve her computer skills. Several witnesses testified that complainant's overall job performance was good, and her prior appraisals indicated that her performance was acceptable before the supervisor's arrival. The Commission found it unlikely that complainant's performance changed as soon as she began working under the supervisor. The Commission also noted that the supervisor's conclusion that complainant would not benefit from additional training, while younger employees would indicates that the agency's stated reason for deciding to terminate complainant was a pretext for age discrimination. The Commission concluded that complainant's retirement was involuntary, as she was pressured into deciding whether to retire or face termination and the loss of health insurance and benefits.

The complainant in Crosby v. Department of the Army,⁵ alleged that he was subjected to age discrimination when he was not selected for an Interdisciplinary position. Complainant, who was 52 years old, applied and was found qualified for the position. On appeal, the Commission found that complainant's qualifications were observably superior to those of the selectee, who was under 40 years of age. Specifically, complainant had served in various positions with the agency, including being a Team Leader. In addition, complainant received the highest performance rating in his most recent appraisal. The selectee, on the other hand, had significantly less experience than complainant. In addition, the Commission found conflicts in the statements of management officials concerning the reasons for complainant's nonselection. Thus, the Commission concluded that the reasons offered by the agency for the action were a pretext for age discrimination.

NO AGE DISCRIMINATION FOUND

In Cameron, et al. v. USPS,⁶ the Commission found that the five complainants were not subjected to age discrimination when the agency abolished the unit they had been working in, and returned them to their regular assignments. The five complainants were working in the Collections Unit at the time of the action in question. According to the agency, senior managers made the decision to abolish the Unit, which it referred to as "an anomaly," and which consisted of employees in various crafts. Complainants were then reassigned within their crafts in accordance with the Collective Bargaining Agreement.

The Commission initially found that complainants failed to show that the abolishment of their jobs in the Collections Unit resulted in a disproportionate adverse impact on individuals on the basis of age. Citing the Supreme Court's decision in Smith, et al. v. City of Jackson, Mississippi,⁷ the Commission noted that the ADEA does authorize recovery, in disparate impact cases, comparable to Title VII. The Commission, however, found that complainants failed to establish a prima facie case under the disparate impact theory. The Commission noted that while complainants provided evidence regarding the number and age of employees affected by the abolishment of the Collections Unit, they did not provide any similar evidence as to employees in the District, or at the Processing and Distribution Center.

In addition, the Commission found that complainants were not subjected to disparate treatment discrimination. While there was evidence that a supervisor referred to employees in the Collections Unit as "old and inflexible," the record shows that all employees in that Unit, ranging in age from 36 to 77, were reassigned regardless of their age. Further, the collections function at other facilities was performed as part of a letter carrier's general duties at each station, and, as such, the Collections Unit at complainants' facility was an anomaly. The record contained testimony that various economic, business, and operational factors contributed to the decision to decentralize the collections function at the facility, and abolish the Unit. The evidence showed that complainants were not assigned collections duties after the Unit was abolished because to do so would have violated other employees' seniority rights. In addition, by decentralizing the collections function, the agency reduced the hours devoted to that task by fifty percent. Thus, the Commission concluded that the complainants failed to show that they were subjected to age discrimination.

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Footnotes

¹ EEOC Request No. 05A41133 (March 18, 2005).

² EEOC Appeal No. 07A30025 (August 8, 2005).

³ EEOC Appeal No. 07A50078 (December 29, 2005).

⁴ EEOC Appeal No. 07A60028 (June 7, 2006), request for reconsideration denied, EEOC Request No. 05A60878 (August 10, 2006).

⁵ EEOC Appeal No. 07A60038 (July 12, 2006).

⁶ EEOC Appeal Nos. 07A40130, et al. (September 20, 2005), request for reconsideration denied, EEOC Request Nos. 05A60095, et al. (December 22, 2005).

⁷ 544 U.S. 228 (2005).