The DIGEST Of Equal Employment Opportunity Law

Volume XVII, No.1

Office of Federal Operations

Winter Quarter 2006

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Inside

Selected EEOC Decisions on:

Article:

A CASE UPDATE: RECENT DECISIONS ON RELIGIOUS ACCOMMODATION

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SELECTED EEOC DECISIONS

Adverse Inferences

Agency Failure to Cooperate Results in Finding of Settlement Breach. In a decision dated August 10, 2004, the Commission determined that the record contained insufficient information to reach a decision on complainant's breach of settlement claim. Accordingly, the Commission remanded the matter to the agency for a supplemental investigation and subsequent final agency decision (FAD). Specifically, the Commission ordered the agency to supplement the record with affidavits from complainant and her supervisors addressing complainant's claims that the agency did not give daily expectations to her on June 9 and 10, 2003, and that she was given unclear and contradictory instructions in June 2003, which were used to attempt to discipline her. After the Commission remanded the matter, the agency issued a final decision dated October 4, 2004, again concluding that it did not breach the agreement. The Commission found that the agency did not comply with its previous order to supplement the record and, in fact, provided no additional evidence on remand to support its October 4, 2004 FAD. Reiterating that its decisions are binding on agencies, and noting that the agency failed to cooperate with the investigation, the Commission drew an adverse inference against the agency and found that the settlement agreement had been breached. To remedy a finding of breach, the Commission found appropriate an order to the agency to reinstate complainant's underlying EEO complaint from the point at which processing had ceased. Rasmussen v. United States Postal Service, EEOC Appeal No. 01A51123 (April 12, 2005).

Attorney's Fees

(See also "Compensatory Damages," in this issue. Ed. Note.)

Reduction in Attorney's Fees Warranted. In a previous decision, the Commission found that the agency had unlawfully retaliated against complaint for his prior EEO activity. With regard to attorney's fees, the agency had accepted the proposed hourly rate and costs, but it reduced the overall amount of the award by 20%, finding that the number of hours expended were not reasonable and appeared excessive. On appeal, the Commission found that, other than a statement to the contrary, complainant's counsel failed to adequately address the agency's claim that many of the hours billed appeared excessive and unnecessary. Under these circumstances, the Commission concluded that the agency appropriately reduced the amount of attorney's fees. Otero v. Department of the Army, EEOC Appeal No. 01A44064 (October 28, 2005).

Attorney Entitled to Customary Rate, Although Hours Claimed Subject to Reduction. The Commission found that complainant was entitled to an award of attorney's fees for work performed in connection with a prior appeal. It initially noted that, although complainant's attorney entered into an agreement to charge complainant no more than $150 per hour, she was entitled to $225 per hour, which was the rate the attorney customarily charged. Complainant's attorney entered into the fee agreement based upon public interest motives and thus was entitled to the prevailing market rate. Further, with regard to the hours expended, the Commission noted that it was not possible to clearly distinguish the hours the attorney worked on complainant's opposition to the agency's appeal, in which complainant was successful, and the hours spent on complainant's cross appeal, in which complainant was not successful. Accordingly, the Commission found that a 30 percent reduction in the hours claimed was reasonable. Elias v. Department of Homeland Security, EEOC Appeal No. 01A43792 (September 12, 2005).

Civil Actions

Complaint Subject to Dismissal on the Grounds that a Civil Action was Filed. Complainant filed a civil action against the agency in a United States District Court. The Commission found that the claims raised in the civil action encompassed the same work space and work assignment claims as those raised in the administrative EEO complaint. In dismissing complainant's appeal, the Commission noted that its regulations mandate dismissal of an EEO complaint under these circumstances so as to prevent a complainant from simultaneously pursuing both administrative and judicial remedies on the same matters, wasting resources, creating the potential for inconsistent or conflicting decisions, and in order to grant due deference to the authority of the federal district court. Prince v. Department of State, EEOC Appeal No. 01A44939 (October 27, 2005).

Class Actions

Conditional Certification Granted. Complainants, as class agents, filed an appeal from the agency's decision implementing an AJ's decision denying class certification. The class agents sought certification of former and current African-American employees assigned to the agency's McGuire facility in Richmond Virginia, since 1996, who were allegedly subjected to a discriminatory awards selection and distribution policy. In reversing the agency and granting conditional certification to the putative class, the Commission found that the class agents had satisfied both the commonality and typicality requirements. The Commission found that the class agents had claimed a common set of facts, and that their claims were typical of those of the putative class members. With regard to numerosity, the class agents contended that the class consisted of some 962 current and former African-American employees at the facility and averred that they had received signed questionnaires from 371 employees in pursuit of joining the subject class. With regard to the requirement of adequacy of representation, the Commission found the record insufficient. It noted that EEOC's procedures contemplated that, where typicality, commonality and numerosity have been satisfied, the class may be conditionally certified to permit the class agent time to obtain qualified counsel. Accordingly, the Commission remanded the matter for the AJ to further develop the record. In this regard, the Commission noted that the AJ retains the authority to redefine a class, subdivide a class or recommend dismissal of a class if it becomes apparent that there is no longer a basis to proceed with the class complaint as initially defined. Harrison-Gray et al. v. Department of Veterans Affairs, EEOC Appeal Nos. 01A42149, 01A42150, 01A42151 (July 6, 2005), requests to reconsider denied, EEOC Request Nos. 05A51147, 05A51143, 05A51146 (August 24, 2005).

Individual Claim Ordered Held in Abeyance Pending Disposition of Class Complaint. An AJ assigned to complainant's case issued an order dismissing complainant's request for a hearing, and remanding the complaint to the agency to hold in abeyance pending adjudication of the class complaint ("Walker"). In relevant part, the Walker class alleged that, since April 2000, the agency discriminated against individuals with disabilities in permanent rehabilitation positions by failing to allow them to work the number of hours determined appropriate by the individual and their physician and which were available. The claim had been analyzed to include denial of overtime. In its prior decision, the Commission found that nothing in the record rebutted complainant's claim that he was not a permanent rehabilitation employee. However, in its request to reconsider, the agency provided evidence that complainant had been in a rehabilitation position since 1989. In light of this clarification of the evidence, the Commission found that complainant held a permanent rehabilitation position and that his claim, that the agency discriminated against him since 2001, by denying him overtime opportunities, was within the parameters of Walker. Therefore, the Commission ordered that claim held in abeyance pending the disposition of Walker, but could be used as background evidence in the processing of his remaining claims, which the Commission remanded for a hearing. D'Andrea, Jr. v. United States Postal Service, EEOC Request No. 05A50876 (December 8, 2005).

Agency Must Submit Class Certification Issue to Administrative Judge. The Commission held that an agency cannot dismiss a class complaint for failure to state a claim on the grounds that the complainant or class agent lacked standing. The Commission noted that, when a class complaint is filed, the agency must refer the matter to an Administrative Judge and it is the AJ who decides whether the complaint meets the prerequisites for class certification. Hall et al. v. United States Postal Service, EEOC Appeal No. 01A51082 (October 13, 2005).

Compensatory Damages

Commission Awards $56,762 in Compensatory Damages. In a previous decision, the Commission found that the agency had unlawfully retaliated against complainant in connection with a detail, and ordered the agency to issue a FAD on complainant's entitlement to compensatory damages. In its subsequent FAD, the agency reduced the amount of past pecuniary damages claimed, noting that complainant was only entitled to reasonable and proven damages associated with the additional distance traveled in order to commute to and from his detail. As for future pecuniary damages, the FAD reduced the amount of the claim requested by two thirds, noting that complainant's doctor failed to show the rationale for the anticipated length of the treatment or a specific breakdown of the cost. With regard to non-pecuniary damages, the FAD reduced the amount of the claim requested by complainant, noting that the severity of the harm he suffered was minimal. On appeal, complainant argued that he traveled 99 work days while on the detail and not the 94 asserted by the agency. Complainant also sought $20,000 for future therapy and medication, and $125,000 in non-pecuniary damages for the length of the detail and the resulting harm. Noting that complainant must submit evidence to show that the agency's discriminatory conduct directly or proximately caused the losses for which damages are sought, as well as the nature, severity, and duration—or expected duration—of the harm sustained, the Commission awarded complainant $1,762 for past pecuniary damages. In this regard, the Commission noted complainant's testimony that the commute from his house totaled 72 miles round trip. However, the Commission found that the distance between the site of complainant's duty station and the site of his detail was 50 miles round trip. Thus, the Commission's award placed complainant in the position that he would have occupied absent the retaliation.

The Commission sustained complainant's claim for $20,000 in future pecuniary damages. Complainant had sought $15,000 to cover the cost of psychotherapy sessions and $5,000 for medication. In this regard, the Commission noted the statement of complainant's psychologist that complainant had no history of psychological treatment prior to the detail and had suffered from major depression directly from being detailed. The psychologist estimated that complainant would require at least 18-24 months of therapy and medication for his sleep disturbance, depression, and anxiety.

Finally, with regard to complainant's claim of $125,000.00 in non-pecuniary damages, the Commission found that $35,000 was consistent with damage awards in comparable cases. The Commission noted complainant's testimony that, as a result of the agency's retaliation, he suffered sleep disturbance with nightmares, weight gain, general fatigue and loss of interest in usual activities, social and interpersonal withdrawal, frequent bouts of crying, feelings of worthlessness, thoughts of suicide, disillusionment with his job, and extreme anger. Otero v. Department of the Army, EEOC Appeal No. 01A44064 (October 28, 2005).

EEO Process – Appeals: Standing

Nonparty May Not File an Appeal Regarding Attorney's Fees. An attorney filed an appeal from an agency decision regarding attorney's fees for an EEO matter settled by his client, the complainant in this matter, and the agency. In a decision, the agency awarded some attorney's fees and costs and denied other requested attorney's fees and costs. The instant appeal was filed only by the attorney, who also signed the appeal and placed his name in the space requesting the complainant's name. The Commission dismissed the appeal finding that the appeal was filed only by the attorney, who, as complainant's representative, was not a party to the instant matter, and who therefore lacked standing to file an appeal in his own right. The Commission noted that, under its regulations, the right to file an appeal was possessed solely by the complainant, as an employee or applicant for employment. In the Matter of Romero v. Department of Agriculture, EEOC Appeal No. 01A46071 (November 29, 2005).

Agency May Not File Appeal Claiming Breach of a Settlement Agreement. The agency claimed that actions by complainant violated a settlement agreement. The Commission found that it did not have jurisdiction over the agency's appeal and, thus, dismissed the appeal. The Commission noted that, while EEOC's regulations expressly provide that a complainant may appeal to the Commission when alleging an agency breached a settlement agreement, the Commission's regulations do not expressly provide for an agency to appeal to the Commission when the agency alleges that a complainant has failed to comply with a settlement agreement. The Commission noted that, in the instant case, it appeared that the agency could raise its concerns regarding complainant's use of multiple procedures to enlarge her remedial recovery as a defense in the grievance process. VanDesande v. United States Postal Service, EEOC Appeal No. 07A50025 (August 31, 2005). Accord, Byers v. Department of Veterans Affairs, EEOC Appeal No. 07A60009 (December 9, 2005).

EEO Process – Failure to Cooperate

Dismissal Affirmed for Complainant's Failure to Cooperate. After making reasonable efforts, the agency was unable to locate the complainant. In affirming the agency's dismissal, the Commission found that the there were a number of different addresses for complainant and that the agency had made several attempts to contact the complainant by phone and in writing. The agency's notice of dismissal was sent to the address of record and informed the complainant that the complaint would be dismissed in 15 days if the complainant did not respond. The record did not show that the complainant provided the agency with a written notification of his change of address, and the agency investigator denied that the complainant had orally provided an updated address. Reynolds v. Department of Defense (Defense Commissary Agency), EEOC Appeal No. 01A51610 (May 17, 2005), request to reconsider denied, EEOC Request No. 05A50939 (July 15, 2005). But cf. Thompson v. Department of Veterans Affairs, EEOC Appeal No. 01A51398 (May 25, 2005) (reversing the agency's dismissal for failure to cooperate on the grounds that there was no evidence complainant attempted to delay the processing of his complaint, as well as sufficient information on which the agency could base an adjudication.)

EEOC Process – Fragmentation

Agency Misconstrued Complaint. The Commission found that the agency misconstrued complainant's complaint by determining that it was comprised of three discrete allegations. Instead, the Commission found that the complaint set forth a pattern of harassment based on race and color. Specifically, the allegations addressed the agency's disparate application of discipline, dress code and overtime hours. Further, complainant alleged that he was constantly forced to violate his documented medical restrictions. Griffin v. United States Postal Service, EEOC Appeal No. 01A46101 (March 24, 2005). See Shumway v. United States Postal Service, EEOC Appeal No. 01A43075 (November 2, 2005) (agency and AJ erred in viewing six incidents as separate claims rather than as evidence supporting complainant's claim of a hostile work environment harassment.)

EEO Process – Grievances (Non-EEO)

EEO Process May Not Be Used to Enforce Grievance Settlements. Complainant alleged that the agency breached a grievance settlement. The Commission held that a complainant may not use the EEO process to obtain compliance with a grievance settlement and, therefore, such a claim is not actionable. Sorrell, Jr. v. United States Postal Service, EEOC Appeal No. 01A45910 (December 22, 2004), request to reconsider denied, EEOC Request No. 05A50481 (March 30, 2005). See, Perkins v. United States Postal Service, EEOC Appeal No. 01A50151 (April 13, 2005) (issue concerning violation of a grievance settlement agreement is beyond the Commission's jurisdiction and is more properly before the grievance/arbitration process between the agency and the union.)

EEO Process – Hearings

AJ Conduct Found Proper. After requesting a hearing, complainant withdrew her request when the AJ denied her request for certain witnesses, as well as her motion to amend her complaint. The AJ then issued an Order of Dismissal dismissing the complaint without prejudice and returned the complaint to the agency for the issuance of a final action. The agency issued a final action wherein it determined that no discrimination had occurred. On appeal, complainant contended that the AJ improperly denied her request for witnesses who would have supported her request for compensatory damages. Complainant also contended that certain incidents should have been included as part of her complaint. In affirming the agency's finding of no discrimination, the Commission noted that, under EEOC's regulations, an AJ has the power to regulate the conduct of a hearing, limit the number of witnesses where testimony would be repetitious and exclude irrelevant evidence. The Commission found nothing improper in the AJ's rulings to exclude certain witnesses submitted by complainant on the grounds that their testimony would be irrelevant and/or cumulative, or that their testimony could only be relevant if liability were found and damages needed to be determined. Moore v. Department of the Air Force, EEOC Appeal No. 01A45747 (May 16, 2005).

EEO Process – Notices

Agency's Decision Not to Reissue Notice of the Right to File a Formal Complaint Was Proper. Although complainant asserted that she never received the Notice of Right to File, the agency indicated that it mailed the Notice to complainant's address of record. The delivery unit confirmed that mail is routinely delivered to complainant at that address. The Notice was accompanied by a certificate of service, which created a presumption that it was received within five days of mailing, and the Notice was not returned to the agency as either unclaimed or undeliverable. The Commission also noted that, by waiting over five months from filing her informal complaint to contact the agency, complainant failed to act with due diligence. Gilmore v. United States Postal Service, EEOC Appeal No. 01A54543 (September 22, 2005).

EEO Process – Proper Agency Required

Wrong Agency Cited. Complainant filed his complaint against the Department of State in connection with his nonselection for the position of Commercial Specialist, American Consulate General, Milan, Italy. The agency dismissed the complaint for failure to state a claim. The agency noted that the position for which complainant was not selected was a Department of Commerce position. The agency explained that it provided human resource services and processing to other U.S. government agencies that have staff and embassy and consulate facilities on a reimbursable basis through an inter-agency agreement. In the instant case, the agency stated that it assisted the Department of Commerce with processing the applications for staff to be recruited and hired through local mechanisms. The agency asserted that it did not act as decision-maker in the selection process, but, rather, the Department of Commerce. The agency noted that it merely processed complainant's application and had no other involvement in the selection process. In affirming the agency's dismissal, the Commission found that the Commercial Specialist position, for which complainant had applied, was a position with the Department of Commerce, and that the selecting official was a Department of Commerce employee. Tijanich v. Department of State, EEOC Appeal No. 01A44959 (March 30, 2005), request to reconsider denied, EEOC Request No. 05A51095 (August 10, 2005).

EEO Process – Same Claims

Different Claims Found. Complainant filed a complaint alleging that he was subjected to discrimination based on retaliation when, on August 1, 2004, he discovered that another employee who had been removed was rehired on that date, but that he was not rehired following his removal on October 8, 2003. The agency dismissed the complaint on the grounds that the accepted issue in a previously filed complaint was complainant's notice of separation of October 8, 2003. On appeal, the Commission reversed and remanded the second complaint for further processing. The Commission found that complainant's claim, that he was treated differently from similarly situated employees when he was not considered for rehire, stated a claim of employment discrimination that was distinct from his claim that he was discriminated against when he was removed from the agency. Love v. United States Postal Service, EEOC Appeal No. 01A51450 (April 14, 2005).

EEO Process – Summary Judgment

Summary Judgment Proper. The Commission found that a decision without a hearing was appropriate, as no genuine dispute of material fact existed. The Commission noted that an appeal from a FAD issued without a hearing is subject to de novo review by the Commission. An issue of fact is "genuine" if the evidence is such that a reasonable fact finder could find in favor of the nonmoving party. A fact is "material" if it has the potential to affect the outcome of the case. In the instant case, the Commission agreed with the AJ's finding that complainant failed to show, by a preponderance of the evidence, that his qualifications for the position at issue were observably superior to those of the selectees. Further, construing the evidence to be most favorable to complainant, the Commission concurred with the AJ's finding that complainant failed to present evidence that any of the agency's actions were motivated by discriminatory animus toward his protected classes or his prior EEO activity. While the Commission agreed with complainant's contention on appeal that, given complainant's exigent circumstances (his wife's surgery), the AJ's decision to deny his request for an extension appeared somewhat harsh, there was no clear abuse of discretion. The Commission also found that complainant had ample opportunity to submit his arguments in opposition to the AJ's decision without a hearing on appeal to EEOC and failed to do so. Osman v. Agency for International Development, EEOC Appeal No. 01A53931 (November 2, 2005).

Summary Judgment Not Appropriate. Complainant asserted that she was subjected to gender discrimination when she was assigned to work at a particular facility. The agency acknowledged that complainant was assigned to the facility because of her sex, but asserted that gender was a bona fide occupational qualification (BFOQ) for working there. The Commission noted that the agency's policy was facially discriminatory. Further, complainant and the agency presented different views of whether gender was a BFOQ and, as such, there was a genuine issue of material fact that warranted a hearing. Perry v. Department of Homeland Security, EEOC Appeal No. 01A31055 (September 29, 2005).

Findings of Discrimination

--Under Disability Law—

Reasonable Accommodation Improperly Denied Resulting in Complainant's Termination. The Commission upheld an AJ's determination that the agency had failed to provide reasonable accommodation, effectively terminating complainant. The Commission agreed with the AJ's determination that complainant had been performing a modified, light duty Distribution Clerk position with and without accommodations since her return to work several years earlier. Complainant had been in an off-duty automobile accident, which left her with impaired memory, difficulty in learning new information, impacted balance and partial permanent paralysis on her left side. Her right arm, however, was not affected. Complainant returned to work as a light duty employee with numerous physical restrictions. These were subsequently modified and she ultimately returned to work for eight hours a day sorting mail. However, a new Supervisor placed complainant in emergency off-duty status and stopped giving her work hours. Eventually, the agency informed complainant that she was unable to perform the full duties of her position as Distribution Clerk and that she would be terminated unless she sought disability retirement or resigned. Complainant responded, stating that she sought to remain employed and requested light duty. The Postmaster denied her request and complainant applied for disability retirement. She also filed an EEO complaint and requested a hearing before an AJ. Based on the testimony of complainant, the Supervisor, and the Postmaster, the Commission found that complainant was a qualified individual with a disability although she was not performing all the essential functions of the "traditional" Distribution Clerk position at the time of her removal, nor was she expected to as they were not part of her modified Distribution Clerk job. Due to her seniority, complainant did not have to perform some of the more physically demanding tasks than the less senior Distribution Clerks were required to perform. The agency was obligated to reasonably accommodate complainant's disability and failed to do so when it refused to allow her to work, essentially forcing her to retire from the agency. The agency was ordered to reinstate complainant, with back pay and pay her $10,000.00 in non-pecuniary compensatory damages. Dellinger v. United States Postal Service , EEOC Appeal No. 07A40040 (September 29, 2005).

Denial of Reasonable Accommodation Improper. The Commission found that the agency unlawfully violated the Rehabilitation Act when it never provided complainant, who is legally blind, with any accommodation that would allow her to read her training materials. As a result, complainant, who had clearly requested training materials in a format she could read, could not prepare nor do research for her position (Visitor Use Assistant at the agency's National Park Service facility at the Alaska Public Lands Information Center). As to management's assertion that all schedules and brochures were available in large font, the record did not support such an assertion. Complainant was not given materials such as daily film times, which she needed in order to assist visitors. In addition, complainant requested assistance from her co-workers to read from texts and handouts. Although some assisted, complainant provided instances where her co-workers were not willing to assist her. Therefore, the use of co-workers was not effective.

Moreover, complainant indicated that she could not read the labels in the brochure storage area and requested that they be changed. When the Manager made no changes to the storage area, complainant replaced labels with index cards using 36-point font. When she had replaced nearly 90% of the labels, complainant claimed that management had the index cards removed and replaced with 20-point font labels. As a result, complainant could not locate most brochures by herself and contended that she had to rely on co-workers to retrieve brochures with the 20-point font labels. None of the management officials addressed complainant's assertion that she could not read the 20 point labels made by management. While the Commission found that the agency was not obligated to provide complainant with a CC TV system (a device that scanned written material and then projected it onto the monitor in large format), as she had requested, it did need to provide her with an effective accommodation that would allow her to read brochures and other documents, such as maps, in order to assist visitors to the center as part of her duties. Complainant also requested that e-mails be sent to her home e-mail address so that she could easily manipulate the size of the font in order to read the e-mails. The Commission found that complainant had shown that she did not receive all work-related e-mails at her home e-mail address and, therefore, could not read the text of those e-mails. Finally, the Commission reminded the agency, which had dismissed complainant's basis of retaliation for lack of prior EEO activity, that requests for reasonable accommodation were a form of protected EEO activity. By way of relief, the Commission ordered the agency to address the issue of compensatory damages, conduct training for, and consider disciplining, management officials who were found to have violated the Rehabilitation Act. Bilowus-Claar v. Department of the Interior, EEOC Appeal No. 01A35287 (December 15, 2005).

Effective Accommodation Not Properly Provided. The Commission agreed with an AJ's determination that the agency violated the Rehabilitation Act when it did not provide an effective accommodation to complainant who had chronic sarcoidosis, an inflammatory disease that affects multiple organs in the body, but mostly the lungs and lymph glands. The agency's assertion that it provided complainant with a work environment within OSHA standards was not sufficient to show that the workroom floor would have been an effective accommodation for complainant, who had to limit her exposure to dust. The Commission noted that OSHA requirements do not take into consideration complainant's specific medical needs and limitations and were thus irrelevant. The Commission also rejected the agency's claim that complainant could have worked with a mask. The mask was not to be used by someone, such as complainant, with a breathing problem. While the Commission stated that, where more than one accommodation is effective, an agency should give primary consideration to the disabled individual's preference, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations. In this case, the Commission found that the only effective accommodation would have been to allow complainant to perform her modified Mailhandler duties in the cubby hole (the box section of the customer service area), the mimeo room, or the flat preparation area of the work floor, which complainant believed was less dusty than the damaged mail area, where complainant had begun working light duty due to her limitations. The Commission also found that the agency failed to meet its burden of showing that allowing complainant, who took disability retirement after being denied the ability to work in the cubby hole, to perform her modified Mailhandler duties in the cubby hole, mimeo room, or flat preparation area, would pose an undue hardship for the agency. The Commission found the record to clearly show that the agency had consistently placed modified Mailhandlers, including complainant, in those work stations for years prior to her request. As part of the relief ordered, the Commission affirmed the AJ's award of $9,000 in non-pecuniary compensatory damages and directed the agency to provide complainant with back pay, interest, and other benefits due her from the date she was not provided with reasonable accommodation to the effective date of her disability retirement. Iftikar-Khan v. United States Postal Service, EEOC Appeal No. 07A40137 (December 15, 2005).

Complainant's Termination Violated Rehabilitation Act. Complainant was terminated by the Director of the agency's Law Enforcement Support Center (LESC), as an Immigration Status Verifier (ISV) after having several seizures: one during her lunch hour, the other two during work hours. Reversing the agency's Final Order adopting the AJ's decision finding no discrimination, the Commission concluded that the issue under consideration was whether complainant posed a direct threat to herself or others in the workplace and that the agency had regarded her as being disabled. The Commission found that complainant was terminated, in part, due to the agency's belief that her seizures interfered with her ability to think and concentrate. The Director of LESC testified that complainant's inability to concentrate and think clearly all the time could cause a fatal error in her job that could affect others. While noting that EEOC has recognized mental and emotional processes such as thinking and concentrating as major life activities, the Commission found that complainant's seizures were neither so severe nor of such duration as to substantially limit her in the major life activities of thinking and concentrating compared to the average person in the general population. Further, the Commission found that complainant had received a "Fully Successful" performance appraisal for her ISV position, which included such essential functions as responding to requests from law enforcement agencies looking for status or criminal history of "foreign-born subjects."

The Commission also found that minimal supervisory intervention on complainant's behalf was required to accomplish tasks and correct deficiencies; that her daily queries were higher than the average; and that, after her seizures (which lasted for approximately 15 minutes), she was able to resume working. Further, complainant's physicians testified, after reviewing a description of her duties and a videotaped episode of the seizures, that complainant was able to handle adequately the IVS position. Finally, the Commission found that the agency had standard operating procedures in the event an employee had an emergency or became violently ill. For example, the query would go to the next available person. The Commission found that the agency failed to meet its burden of showing that complainant posed a direct threat based on the subjective evaluation of complainant's supervisors, rather than on an individualized assessment of complainant's condition and in direct contradiction of the medical evidence. Moreover, the Commission determined that the agency was motivated by a concern for the way that co-workers reacted to the seizure episodes. The Commission concluded that complainant was not responsible for the reactions of her co-workers who, for example, left their work areas without authorization because they were uncomfortable. The Commission declared that such actions were a matter to be handled by agency officials. As part of the remedies ordered, the Commission directed the agency to offer to reinstate complainant to her ISV position, or a substantially similar position, with back pay and any applicable interest, and provide training to and consider disciplining the management officials responsible for terminating complainant. The Commission also remanded the issues of compensatory damages and attorney's fees. Fellows-Gilder v. Department of Homeland Security, EEOC Appeal No. 01A33476 (December 9, 2005).

Reasonable Accommodation: Failure to Act in Good Faith. Complainant alleged that he was denied a reasonable accommodation based on his disability (bronchial asthma), when he requested that the agency not move him from his enclosed office, where he could control the temperature, to an open office cubicle. The AJ found that the complainant's request was reasonable and that the agency's offer to provide a space heater in the cubicle was neither effective nor reasonable. However, the AJ also found that the complainant was not entitled to non-pecuniary compensatory damages because the agency acted in good faith to accommodate the request. The Commission found that the AJ's determination as to good faith was not supported by substantial evidence. The Commission ordered the agency to conduct a supplemental investigation pertaining to complainant's entitlement to compensatory damages. Patel v. Department of the Navy, EEOC Appeal No. 01A42593 (June 30, 2005).

--Under Title VII—

Gender Discrimination: Harassment. Complainant, an Air Traffic Controller (ATC) alleged discriminatory harassment, including a suspension, based on sex (female). The Commission found that the AJ's findings of fact were supported by substantial evidence, which demonstrated that complainant's supervisor exhibited gender bias. There was testimonial evidence from other air traffic controllers that the supervisor made derogatory comments about complainant and other female ATCs, and referred to complainant in sexist terms. The agency was ordered to provide back pay, restore leave usage, and pay attorney's fees. Estate of Linda Petersen v. Department of Transportation, EEOC Appeal No. 07A50016 (September 21, 2005).

Gender Discrimination: Assignments. Complainant was a female Immigration Enforcement Officer who was ordered to transport a female detainee, under a local informal policy to use a female officer to escort a female detainee. The Commission noted that, by treating complainant differently in the duties to which she had been assigned based on her sex, the agency caused harm to complainant with regard to a term, condition, or privilege of her employment. The agency's policy was found to be facially discriminatory because it used gender as a determinant in designating who transported female detainees. The agency did not argue that gender was a BFOQ. The Commission ordered the payment of $1,500 in non-pecuniary compensatory damages and $16,175 in attorney's fees. Booker v. Department of Homeland Security, EEOC Appeal No. 07A30076 (July 13, 2005).

Gender Discrimination: Transfers. Complainant requested a lateral transfer to a facility closer to his home so that he could have a shorter commute because of a back injury and in accordance with his doctor's recommendation. The agency denied his request. An AJ determined that the decision-making official had previously selected a female who was considered for a position due to her need to be closer to her home. The AJ found that the official could have done the same for complainant. The Commission affirmed the AJ, as to gender discrimination (determining that it was not necessary to address the AJ's additional finding of disability discrimination), and ordered the agency to offer complainant a transfer and pay him $2,000 in non-pecuniary compensatory damages. McShan v. United States Postal Service, EEOC Appeal No. 07A40089 (September 15, 2005).

National Origin Discrimination. Complainant alleged that he was subjected to national origin discrimination (Angolan), when he was required to work overtime on one occasion and was issued a letter of warning (LOW). The Commission found that complainant established a prima facie case of discrimination, in that he identified two co-workers who were treated more favorably than he. Further, while complainant's supervisor stated that one of the co-workers also received a LOW, the agency failed to produce any evidence to corroborate that assertion. In addition, the supervisor did not contend that the other co-worker ever received the same discipline for the same infraction as complainant. While the investigator asked the agency to locate disciplinary actions, the agency failed to do so. Thus, the Commission found that complainant was subjected to national origin discrimination and ordered the agency to expunge the LOW from complainant's personnel file and conduct training for, and consider disciplining, the responsible officials. Sequeira v. United States Postal Service, EEOC Appeal No. 01A50910 (September 29, 2005).

Race Discrimination. The Commission affirmed the findings of an AJ that complainant had been discriminated against based on race (African-American) when he was not selected for the position of Program Management Officer in the Air, Pesticides, and Toxics Management Division of the agency. The AJ found that the agency's articulated reason for its actions, by stating that the Selectee had supervisory experience and could be moved into the position without technical experience, to be more likely than not a pretext for discrimination. The AJ found that complainant was obviously superior to the Selectee. The AJ noted that complainant had five years of supervisory experience as a section chief in the area of the position, in addition to another five years of experience with the agency. The AJ awarded complainant $2,500 in compensatory damages and ordered the agency to promote complainant to the position at issue, retroactive to the date of the Selectee's promotion, or a substantially equivalent position. Johnson, Jr. v. Environmental Protection Agency, EEOC Appeal No. 07A30128 (August 11, 2005), request to reconsider denied, EEOC Request No. 05A60006 (October 27, 2005).

Religious Discrimination. Complainant was terminated from his position as a casual employee for failing to report to work on Saturdays. Complainant had become convinced that Saturday was the proper day on which the Sabbath should be observed in his religion, African Methodist Episcopal. Although complainant had previously been accommodated by not being made to work on Saturdays, he was informed that he could no longer have Saturdays off, after a transfer to a new facility. The AJ found that complainant met the burden of demonstrating that he held a bona fide religious belief. The Commission found that the agency made no good faith effort to accommodate complainant's religious beliefs—such as considering having other employees voluntarily switch schedules--or carry its burden of showing undue hardship in accommodating his beliefs. The agency was ordered to provide complainant with back pay, $60,000 in non-pecuniary compensatory damages, reinstatement, and $54,258 in attorney's fees and costs. Bullock, III, v. United States Postal Service, EEOC Appeal No. 07A40101 (August 3, 2005).

--Under Multiple Bases--

Gender and Age Discrimination: Nonselections. The Commission found that complainant was subjected to gender and age discrimination when he was not selected for two positions. Complainant, who made the best qualified lists (BQL), was not chosen in favor of female applicants who were substantially younger than he. The selecting official (SO) failed to submit an affidavit or otherwise respond to requests for information concerning the nonselections. While another agency official stated that the SO relied upon information provided by Headquarters Program Directors, the Commission found that the statement did not meet the agency's burden to articulate a legitimate, nondiscriminatory reason for its actions. The Commission found the statement to be merely a general summary, which did not provide any insight into how complainant's qualifications were evaluated in comparison to those of the selectees. The agency was ordered to offer complainant one of the positions, or a substantially equivalent position, with back pay, interest, and benefits. Eubanks v. Department of Housing and Urban Development, EEOC Appeal No. 01A40070 (September 14, 2005).

Gender and Age Discrimination: Nonselection. The Commission affirmed an AJ's finding that complainant was subjected to age and gender discrimination when she was not selected for a Postmaster position. The record showed that complainant's qualifications were superior to those of the selectee, as complainant had vastly more supervisory experience than that of the individual selected for the position. In addition, the supervisor offered no evidence to support his assertion that complainant had performance problems while serving as an Officer In Charge. Complainant had also received good performance evaluations while working for the selecting official. Finally, the record included several statements by the selecting official that indicated age bias including a comment that there were hardly any Postmasters of complainant's age in his district. The agency was ordered to retroactively assign complainant to the position, with back pay and benefits. Miller v. United States Postal Service, EEOC Appeal No. 01A54420 (September 28, 2005).

Gender and Retaliation. The Commission found that complainant was subjected to gender and reprisal discrimination when she was not selected for a Corrections Counselor position. Complainant, who was one of 10 individuals found to be Best Qualified for the position, was not selected in favor of male applicants. Further, the selecting official was aware that complainant had settled a prior EEO complaint approximately six weeks prior to her nonselection, and there was a notation on complainant's rating form for the position in question indicating that she had obtained a promotion through an EEO settlement. The Commission also stated that the agency failed to articulate a legitimate, nondiscriminatory reason for complainant's nonselection. The selecting official failed to identify any specific qualifications or experiences that the selectees possessed, which better qualified them for the position. Further, the evidence failed to show that the selectees were clearly more qualified than the complainant who was the highest ranking candidate on the BQL. As part of the relief awarded, the agency was ordered to offer complainant the position at issue, with back pay and benefits. Stewart v. Department of Justice, EEOC Appeal No. 01A41400 (September 29, 2005).

Race and Retaliation. The Commission affirmed an AJ's finding that complainant, an Administrative Law Judge (ALJ), had been subjected to race and retaliation discrimination with regard to a reassignment and the denial of a hardship transfer. While the agency asserted that complainant was reassigned to a specific location because of the need for another judge in that location, and the lack of work in an alternative location, the AJ found those reasons to be pretextual. Specifically, the AJ stated that the responsible official did not speak to the Chief Judge at the alternative location until after making the decision as to where complainant would be assigned. Further, the evidence showed only a slight difference in work load between the two offices. The agency was ordered to reimburse complainant for expenses incurred while working at the specific location and pay complainant $50,000 in damages, as well as attorney's fees and costs. Slocum v. Social Security Administration, EEOC Appeal No. 07A40062 (September 15, 2005).

Jurisdiction

Military-Civilian Distinction Explained. Complainant alleged discrimination based on disability (alcoholism) when: (1) he was issued a Notice of Decision to Remove (Non-Disciplinary) from his Air Reserve Technician (ART) Aircraft Mechanic position; (2) he was a issued a Notice of Proposed Removal similar to claim (1) in content; (3) his superiors denied him the opportunity to be evaluated for treatment of his alcoholism while other employees were allowed to be evaluated; and (4) he was subjected to a hostile work environment when his Supervisor was instructed to e-mail his times of arrivals to his (complainant's) superiors. The agency dismissed the first two claims as being related to his loss of reserve status, which was purely a military matter and beyond the scope of the Commission's regulations. The Commission noted that, as a condition of continued employment, an ART must maintain active membership in the Air Force Reserves (ARF). In this case, complainant was given the Notice of Proposed Removal, as he requested, to be separated from the AFR. Complainant raised claims (1) and (2) before the Merit Systems Protection Board (MSPB), which affirmed the agency's action of removing him but declined jurisdiction over his disability claim.

On appeal, the Commission noted that courts have held that, unlike civilian employees, military personnel of any branch of the armed forces, including military personnel within the reserve components, are not covered under federal nondiscrimination law. The EEOC recognized the "dual status" of federal technicians in the reserves, noting that those individuals are considered both uniformed military personnel, as well as civilian employees. However, EEOC held that federal technicians are covered by federal nondiscrimination law only when the alleged discriminatory action arises from their capacity as civilian employees, and not when personnel decisions affect their capacity as uniformed military personnel. The Commission found that claims (1) and (2) exclusively involved a military matter and were outside the purview of EEOC's regulations. However, the Commission found that the agency did not address complainant's "amended" claims (3) and (4), which raised issues of disparate treatment and harassment. The Commission found the record unclear as to whether those claims arose from complainant's capacity as a civilian employee or as a military employee. Since the agency did not explain, in its decision or on appeal, how, specifically, the claims at issue arose from complainant's military employment, the Commission remanded claims (3) and (4) to the agency for it to supplement the record with evidence that addressed whether the claims at issue arose from complainant's capacity as a military employee. McInvale v. Department of the Air Force, EEOC Appeal No. 01A51484 (March 24, 2005).

Complainant Not an Employee Covered By the Commission's Regulations. An employee of an agency contractor alleged disability and age discrimination. After balancing many factors, the Commission found that complainant was not an employee of the agency. The record contained an offer of employment to complainant by Corporation "A," a subcontractor on a Corporation "B" contract to provide services to the Coast Guard Recruiting Command. Complainant's offer of employment, performance appraisal, and termination notice were on Corporation "A" stationery and were signed by an official of that corporation. Complainant's supervisor of record was a corporate employee pursuant to provisions of Corporation "A's" contract with the agency. The contract stated that the contractor was to provide all management, administrative, clerical, and supervisory functions required for the effective and efficient function of the contract. In addition, complainant was paid by the corporation, which also set her work hours, accrued leave, and paid her social security taxes. Complainant did not accrue federal retirement benefits. Her work as an administrative assistant was not inherently governmental. From the weight of the evidence, it appeared that all the important indicia of employment—hiring, means and manner of work performance, evaluations and termination—were all controlled by the subcontracting corporation. The Commission found that complainant had not presented evidence to establish that the agency, rather than the subcontracting corporation, exercised the real control over complainant's employment. Accordingly, the Commission affirmed the agency's dismissal of complainant's complaint, for failure to state a claim, on the grounds that complainant was not a Federal employee. Barnes v. Department of Homeland Security, EEOC Appeal No. 01A53191 (October 27, 2005), request to reconsider denied, EEOC Request No. 05A60300 (December 21, 2005)

.

Mixed Cases: MSPB and EEOC Jurisdiction

Commission Lacks Jurisdiction to Hear Complainant's Petition to Enforce MSPB Settlement. Petitioner initially filed an appeal with the Merit Systems Protection Board (MSPB, or the Board) regarding a demotion. The matter was settled. Petitioner filed petitions for enforcement (PFEs) seeking attorney's fees and claiming breach of the settlement agreement. In an initial decision the MSPB AJ dismissed the petition as untimely filed. Petitioner sought review by the full Board, which denied his Petition. Neither the initial decision nor the Board's decision gave Petitioner appeal rights to EEOC. Petitioner then filed a Petition with EEOC. In its decision denying the petition for review, the Commission noted that EEOC has jurisdiction over claims of discrimination raised in connection with an action that is appealable to the MSPB. However, the Commission pointed out, because the MSPB did not address any matters within the EEOC's jurisdiction, the Commission had no jurisdiction to review petitioner's case. Sellman v. United States Postal Service, EEOC Petition No. 03A60022 (December 21, 2005).

Mixed Cases: Election of Forum

Initial Filing Determines Forum. Complainant appealed to EEOC the agency's dismissal of his EEO complaint on the grounds that he had previously elected to appeal to the MSPB. The Commission noted that a mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the MSPB. An aggrieved person may elect to initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB. They may not do both. Moreover, whichever is filed first is considered an election to proceed in that forum. The Commission found that complainant had first appealed a temporary reassignment, which was the subject of his EEO complaint, with the MSPB and had entered into a settlement agreement with the agency, resulting in MSPB's dismissal of his appeal before the Board. Accordingly, the Commission affirmed the agency's dismissal of his subsequently-filed EEO complaint on the same matter. Ontiveros v. Department of the Army, EEOC Appeal No. 01A51745 (May 25, 2005), request to reconsider denied, EEOC Request No. 05A51013 (July 15, 2005).

Mixed Cases: Denial of Consideration

Lack of MSPB Jurisdiction Renders Case "Unmixed" . Petitioner sought review by EEOC of MSPB's final order, which found that petitioner had not set forth facts that would show that his resignation was involuntary and, accordingly dismissed his appeal for lack of jurisdiction. The Commission held that, when MSPB has denied jurisdiction in such matters, there is little point in viewing the matter as a "mixed case." Therefore, the case would be considered a "non-mixed" matter and processed accordingly. Greenidge v. United States Postal Service, EEOC Petition No. 03A60019 (December 13, 2005).

Mootness

Agency Dismissal Improper. Complainant filed a formal complaint alleging that he was subjected to discrimination when he was denied the opportunity to work overtime on two occasions. The Commission rejected the agency's assertion that the complaint was rendered moot when complainant was given the opportunity to work overtime on two subsequent dates. The Commission noted that, if discrimination were found, the proper remedy would be payment for the two missed overtime opportunities, and that the mere opportunity to work overtime on two subsequent occasions could not be construed as interim relief that completely and irrevocably eradicated the effects of the alleged violation. Price v. United States Postal Service, EEOC Appeal No. 01A54218 (September 8, 2005).

Petitions for Enforcement

EEOC Finds Agency Failed to Comply With Its Order. The Commission found that the agency failed to comply with its prior order to provide complainant with all formal, informal, and other training and job-enhancing benefits that he would have received absent discrimination. While the agency provided complainant with informal, on-the-job training, other supervisors attended formal training in a classroom setting. Among other directives, the Commission ordered the agency to use the training provided to other supervisors as a benchmark in providing training and other job-enhancing benefits to complainant. Young v. United States Postal Service, EEOC Petition No. 04A50024 (September 28, 2005)

Remedies

Tax Liability on Back Pay Awards. An award to compensate a complainant for tax liability stemming from a lump sum back pay award under the Age Discrimination in Employment Act (ADEA) is permissible. An AJ found that complainant was discriminated against when she was not selected for a position. As part of the relief, the AJ ordered that any back pay complainant received should contain a tax component to compensate complainant for the increased tax liability resulting from a lump-sum payment. The Commission agreed with complainant that the agency had failed to include a component in its calculation of her back pay award to compensate her for the negative tax consequences occasioned by the receipt of her award in a lump sum. The Commission ordered the agency to afford complainant the opportunity to submit evidence of any negative tax consequences she had or would incur as a result of the lump-sum payment. Smets v. Department of the Navy, EEOC Appeal No. 01A45224 (July 19, 2005), request to reconsider denied, EEOC Request No. 05A51173 (September 19, 2005).

Back Pay Properly Denied: Complainant Failed to Mitigate Damages. The Commission found that the agency properly denied complainant back pay following a finding by an AJ that complainant had been subjected to age discrimination when she was not selected for a position, and retaliation when she was removed from employment. Complainant signed a statement to the effect that she did not seek outside employment during the back pay period. While complainant asserted on appeal that she did seek outside employment, the agency properly relied upon her sworn statement to the contrary. Thus, the agency met its burden of showing that complainant failed to mitigate her damages. Johnson v. United States Postal Service, EEOC Appeal No. 01A51490 (September 29, 2005).

Interim Relief. An AJ issued a decision finding that the complainant had been subjected to disability discrimination when she was denied reasonable accommodation and terminated. The agency was ordered to offer complainant reinstatement to her former position. The agency subsequently appealed the decision to EEOC. The Commission dismissed the appeal, stating that the agency had failed to comply with the Commission's regulations requiring the agency to provide complainant with temporary or conditional restoration to her position pending the outcome of its appeal. Wilkinson v. Social Security Administration, EEOC Appeal No. 07A50089 (September 29, 2005).

Sanctions

Complainant's Failure to Comply With AJ's Scheduling Order Warranted Returning the Case to the Agency for a Final Decision Without a Hearing. The Commission found the AJ's actions proper in light of complainant's failure to comply with the AJ's scheduling order to provide a proposed finding of facts and conclusions of law, a witness list, and a list of damages. The Commission noted that sanctions should be tailored to deter the party from similar conduct in the future and, if warranted, to equitably remedy any harm incurred by the opposing party. Sanctions should not be so severe that they result in inequity, nor should they be so lenient that they fail to serve as a deterrent. If a lesser sanction would suffice to deter the conduct and to equitably remedy the opposing party, it may constitute an abuse of discretion to impose a harsher sanction. Kelley, Jr. v. Department of Defense (Defense Commissary Agency), EEOC Appeal No. 01A45412 (March 23, 2005).

Sanctions Appropriate. Complainant asserted that she was subjected to race, sex, and age discrimination when the agency failed to select her for a position. The Commission found that the AJ's decision to impose sanctions on the agency, for failing to preserve interview notes, by issuing a finding of discrimination, was proper. The Commission noted that the only reason offered by the agency for complainant's nonselection was her poor performance during the interview. Thus, the agency's failure to preserve the interview notes provided complainant with no way to prove pretext. Further, given that the record showed that complainant would likely have been selected for a subsequent promotion, the Commission ordered the agency to offer complainant the promotion, with appropriate back pay, and pay her $15,000.00 in compensatory damages. King v. Department of Transportation, EEOC Appeal No. 07A40003 (September 29, 2005), request to reconsider denied, EEOC Request No. 05A60208 (January 4, 2006).

Settlement Agreements

Complainant May Seek Either Specific Performance of a Settlement Agreement or Reinstatement of Their Initial Discrimination Complaint, But Not Both. The Commission declined to address complainant's claims of harassment and retaliation, which had occurred before execution of the settlement agreement, because they were addressed and resolved as part of the SA. Complainant had alleged that incidents of harassment had occurred both before and after the July 2003 SA. Noting that complainant had filed a formal EEO complaint pertaining to incidents allegedly occurring post-SA, rather than requesting specific implementation of the SA, the Commission stated that it would address only those incidents of harassment and/or retaliation allegedly occurring after execution of the July 2003 SA and affirmed the FAD's finding that no discrimination had occurred. Gray v. Department of the Interior, EEOC Appeal No. 01A54644 (November 2, 2005).

Settlement Agreement Unenforceable. Complainant and the agency entered into a settlement agreement, which stated that complainant's separation did not prevent her from applying for other positions with the agency. The Commission found that the agreement was unenforceable, stating that the agency failed to provide complainant with anything more than that to which she was already entitled. Jackson v. United States Postal Service, EEOC Appeal No. 01A53202 (September 14, 2005).

Breach of Settlement Found; Specific Performance Ordered. Complainant and the agency entered into a settlement agreement, which provided that the agency's personnel office would conduct an audit of complainant's job description. Complainant had previously submitted a number of changes that she believed should be made to her position description and her supervisor agreed with those changes. The Commission rejected the agency's assertion that it had complied with the terms of the SA when a management official, who had delegated classification authority, signed the supervisor's classification recommendations. The Commission noted that there was no evidence that the official conducted the type of independent, thorough review of complainant's job description, as contemplated by the SA and, instead, merely rubber stamped the supervisor's recommendations. Further, the Commission stated that the terms of the agreement did not contemplate a review by individuals in complainant's supervisory chain of command. The Commission ordered the agency to submit the necessary paperwork to the Civilian Personnel Operations Center (CPOC) to conduct or initiate the process the auditing complainant's current job description. CPOC or its designee was directed to conduct the audit in accordance with applicable agency rules, regulations, and law. Romike v. Department of the Army, EEOC Appeal No. 01A45008 (September 29, 2005).

Noncompliance Found; Agency Ordered to Reinstate Underlying Complaint. Complainant and the agency entered into a settlement agreement that provided, in pertinent part, that the agency would not inform potential employers of any actual or proposed disciplinary action against complainant. The agency also agreed to purge all references to a dispute, between complainant and a co-worker, from complainant's official personnel file. The Commission found that the agency breached the agreement when, during the course of a background check interview, a Human Resources Specialist discussed in great deal the incident between complainant and the co-worker and revealed that the supervisor had proposed to suspend complainant and had ordered complainant to visit a mental health professional. Thus, the agency was ordered to reinstate the underlying complaint for processing. Hillsmith v. Department of Health and Human Services, EEOC Appeal No. 01A53076 (September 27, 2005).

Stating a Claim

In the following decision, the Commission found complainant's claims failed to state a claim upon which relief could be awarded:

Gilmore v. United States Postal Service, EEOC Appeal No. 01A43520 (March 17, 2005) (MSPB and not EEOC is proper forum for claim of noncompliance with MSPB settlement agreement .)

In the following decisions, the Commission found that the complaints stated a claim:

McDonnell v. United States Postal Service, EEOC Appeal No. 01A54753 (November 7, 2005) (sex discrimination and denial of reasonable accommodation based on disability, in connection with assignment of duties.)

Thai v. United States Postal Service, EEOC Appeal No. 01A54142 (September 22, 2005), and Hui v. United States Postal Service, EEOC Appeal No. 01A54361 (September 22, 2005) (claims of sexual harassment raised by complainants regarding remarks and comments allegedly made by agency managers and supervisors who purportedly targeted Asian women and stared at them in an explicit manner while they worked.)

Eichie v. Department of Justice, EEOC Appeal No. 01A53966 (September 14, 2005) (hostile work environment harassment claim was improperly fragmented into individual incidents.)

Bellot v. United States Postal Service, EEOC Appeal No. 01A54156 (September 14, 2005) (cognizable claim of harassment when complainant's supervisor allegedly yelled at her while following her as she performed her duties; called her into his office and accused her of creating a hostile environment; continued to yell at her in front of other employees later in the day; and refused her request for sick leave.)

Tafoya v. Department of Veterans Affairs, EEOC Appeal No. 01A45925 (September 8, 2005) (claim of retaliation concerned two co-workers improperly accessing complainant's medical records, allegedly one week after complainant filed a formal EEO complaint.)

Stoltz v. United States Postal Service, EEOC Appeal No. 01A53899 (August 31, 2005) (alleged discrimination based on disability—association with individual with a disability—in this case, complainant's daughter—when he took sick leave to take care of his daughter, and the agency changed his sick leave to annual leave.)

Tyson v. United States Postal Service, EEOC Appeal No. 01A55199 (November 30, 2005) (retaliation alleged in connection with assignment to an involuntary two-week, out-of-town, training course, which would likely deter protected activity.)

Velianski v. United States Postal Service, EEOC Appeal No. 01A54492 (September 21, 2005) (complainant's supervisor allegedly threw a chair at her; the chair purportedly was given to complainant to address a medical condition; complainant claimed that the incident created a hostile work environment and was in retaliation for her having engaged in protected EEO activity.)

Timeliness

EEO Counselor Contact Timely. Complainant contacted an EEO Counselor on March 11, 2005, alleging sex and disability discrimination when he was not returned to his regular station, but was assigned to another location. The Commission rejected the agency's argument that complainant should have reasonably suspected discrimination when he returned to duty following his injury in October 2003, stating that complainant asserted that he was initially told that he would be returned to his regular work station when work became available. Complainant later learned, in March 2005, that a co-worker was allowed to return to work at that location and assigned duties there. Williams v. United States Postal Service, EEOC Appeal No. 01A54583 (September 22, 2005).

EEO Contact Timely: Discrepancies in Agency Records Noted. Complainant alleged that she was subjected to harassment. The Commission noted discrepancies in the agency's documentation and resolved those in favor of complainant. Specifically, while the agency's copies of certain documents indicated the date of contact as being April 12, 2005, complainant's copies reflected the fact that she had contacted the Counselor on April 11, 2005, the 45th day after the events allegedly had occurred. The Commission noted that the agency bears the burden of obtaining sufficient information to support a reasoned determination and that the evidence failed to support the agency's dismissal for untimely EEO contact. Lewis v. United States Postal Service, EEOC Appeal No. 01A54286 (September 22, 2005).

Complaint Timely Filed. The Commission found that complainant's detailed explanation of his efforts to meet with his representative, and file his complaint in a timely manner, justified extending the limitation period for filing his formal complaint. Centeno v. United States Postal Service, EEOC Appeal No. 01A53620 (October 17, 2005).

A CASE UPDATE:
RECENT DECISIONS ADDRESSING RELGIOUS ACCOMMODATION

AN OVERVIEW

Title VII of the Civil Rights Act of 1964 requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless doing so would create an undue hardship.¹ The Commission defines the term "religious" to include moral or ethical beliefs as to right and wrong that are sincerely held with the strength of traditional religious views.² After an employee or prospective employee notifies the employer of his or her need for an accommodation, the employer has an obligation to reasonably accommodate the individual's religious practices.³ When there is more than one method of accommodation available which would not cause undue hardship to the employer, the Commission will examine the alternatives considered by the employer, and the alternatives, if any, offered by the requesting individual in order to determine whether the accommodation offered is reasonable.⁴ In cases in which there is more than one means of accommodation which would not cause an undue hardship, the employer must offer the alternative which least disadvantages the requesting individual's employment opportunities.⁵

LEGAL STANDARDS

The traditional framework for establishing a prima facie case of discrimination based on religious accommodation requires a complainant to demonstrate that: 1. she has a bona fide religious belief, the practice of which conflicted with her employment; 2. she informed the agency of this belief and conflict; and 3. the agency nevertheless enforced its requirement against the complainant such that she was penalized for failing to comply.⁶ Once a prima facie case has been established, the burden shifts to the agency to demonstrate that it cannot reasonably accommodate the complainant without incurring an undue hardship. The Supreme Court has found that an accommodation which creates more than de minimis monetary or efficiency costs causes an undue hardship for an employer.⁷ In addition, undue hardship can be shown where a variance from a bona fide seniority system is necessary in order to accommodate the complainant's religious practices, and doing so would deny another employee his or her job shift preference guaranteed by that system.⁸ A showing of undue hardship, however, cannot be merely hypothetical, but must include evidence of an actual imposition on co-workers or disruption of work schedules or routines.⁹

RECENT COMMISSION DECISIONS FINDING RELIGIOUS DISCRIMINATION

In Bullock v. USPS, ¹⁰ the complainant, a Casual Mail Handler, alleged that he was subjected to religious discrimination when he was terminated from employment for failing to report to work on Saturdays. Complainant, a member of the African Methodist Episcopal Church, asserted that he became convinced, after praying and reading the Bible, that Saturday was the proper day on which to observe the Sabbath. After advising his supervisor of his belief in May 2000, complainant was not required to work on Saturday. In February 2002, however, complainant was transferred to another facility. He was subsequently told that he could not have off on Saturdays, despite complainant having informed his new supervisor of his belief. Complainant received a letter terminating him from employment after he failed to report to work on a Saturday.

The Commission found that complainant had a bona fide religious belief that Saturday is the Sabbath, and that he arrived at this belief after reading the Bible, praying, and talking to others with similar beliefs. Further, complainant informed the agency of his belief, and was denied the opportunity to take Saturdays off from work. The Commission also concluded that the agency failed to show that accommodating complainant's belief would pose an undue hardship. The record contained evidence that another Casual employee was off work on Saturdays. In addition, just days after complainant was terminated, two tours were combined so that Casuals could be given Saturdays off, and the agency failed to show that there had been any changes in operations between those times.

The complainant in Cirami v. USPS ¹¹ worked as a Motor Vehicle Operator, and requested leave to observe Good Friday in 2001. The agency denied his request, stating that it was untimely submitted in violation of the local Memorandum of Understanding, and that 20-percent of the Motor Vehicle Operators were not scheduled for that day. The Commission found that the agency failed to show that it attempted to reasonably accommodate complainant's request. The Commission noted that there are several acceptable alternatives for accommodating conflicts between work schedules and religious practices, including, among other things, voluntary substitutes and swaps. Further, it is the agency's obligation to facilitate the securing of a voluntary substitute. In this case, the record was devoid of any evidence that the agency pursued the possibility that another employee might volunteer to substitute for complainant, or swap annual leave days, or that complainant might have used compensatory time to make up for the time lost in observance of his religious practices.

In Rolfe v. USPS,¹² the Commission found that the agency failed to accommodate complainant's religious practices. The complainant, a Catholic, alleged that the agency denied her request not to work on Christmas and New Years days, which she stated are Holy Days of Obligation in the church. The Commission initially found that complainant had a bona fide belief that she should not work on the days in question because of her religious beliefs. Specifically, complainant's testimony revealed that she was deeply troubled about working on these Holy Days of Obligation. Further, complainant clearly informed both her supervisor and the Postmaster that working on the two religious holidays conflicted with her religious beliefs, and the agency failed to show that providing complainant with an accommodation would result in an undue hardship. The Commission concluded that complainant's supervisor did not ask other employees to work on the days in question, and did not attempt to reschedule complainant. Finally, the record failed to show that other employees could not, in fact, work on either of the days at issue, and the agency offered no explanation why the supervisor scheduled complainant to work on both of the holidays rather than either of the other employees.

The complainant in Manalo v. Department of the Navy ¹³ alleged that she was denied a religious accommodation when she was not permitted to use annual leave on Good Friday. Complainant stated that her previous supervisor had allowed her to use annual leave on Good Friday, which was a very important day of the Holy Week "that [her] family observes solemnly." The Commission found that the agency failed to show that it could not reasonably accommodate complainant without incurring an undue hardship. Complainant's supervisor stated only that she had off on the last eight Good Fridays, and that he believed she was abusing her sick leave. The Commission concluded that this explanation did not indicate that granting complainant's request for accommodation would impose more than a de minimis cost, and, instead, suggested that complainant was being punished for exercising her right to a reasonable accommodation for her religion in the past. Thus, the Commission found that complainant was subjected to religious discrimination.

In Darland v. Department of Defense¹⁴ the complainant alleged that he was subjected to religious discrimination when his work schedule was changed to require that he work on Sundays. Complainant, a Protestant, acknowledged that his supervisor allowed him to take two hours off on Sunday. Complainant asserted, however, that he could not perform any work on Sunday due to his religious belief that the entire Sabbath was holy. The agency contended that Sundays were particularly busy at the facility, and, as such, almost all employees were required to work on that day.

The Commission initially noted that there was no evidence that the agency attempted to find complainant an accommodation other than offering him two hours off on Sundays. The Commission stated that, although required to do so, the agency did not consider a voluntary shift swap, flexible scheduling or a lateral transfer to other facilities on days other that Sunday. The agency, instead, summarily found that any accommodation other than providing two hours off would cause an undue hardship without providing any documentation to support its assertion. The Commission found no evidence in the record that the facility's operations would have been adversely affected if complainant did not perform his assignment, which involved assembling shippers of merchandise, on Sundays. Thus, the Commission found that complainant was subjected to discrimination on the basis of his religion when the agency failed to reasonably accommodate his religious beliefs.

DECISIONS FINDING NO DISCRIMINATION

The complainant in Owens v. USPS ¹⁵ asserted that the agency discriminated against her on the basis of her religion when it denied her request to pray in her immediate supervisor's office. Complainant, a Muslim, informed the agency that she needed a place to pray, because her religious belief requires her to pray each morning before sunrise. Complainant asked to pray in one of two specified areas for approximately 15 minutes. While her supervisor denied her request to pray in the areas mentioned, he told complainant that she could pray in an area where other Muslim employees prayed. The supervisor also told complainant that she could pray for a total of 60 minutes each day. The Commission found that the supervisor's response was sufficient to meet the agency's obligation to provide complainant with religious accommodation. The Commission also noted that complainant had the option of praying during her lunch break, which she was allowed to take within a two-hour window during the pre-dawn hours.

The complainant in Cosgrove v. Department of the Interior ¹⁶ worked for the agency as Park Ranger. In response to complainant's request for Sunday mornings off in order to attend his Sabbath services, the agency granted complainant leave without pay from 1993 until 1999. According to complainant, his supervisor then informed him that a new union agreement did not provide for religious accommodation, and he would have to taken annual leave. The record showed that, at times, complainant's request for leave was denied because it conflicted with a co-worker's request made months before complainant's request. On those days when complainant's request was denied, the agency advised him to contact the facility on Sunday morning to see if there was sufficient coverage so as to excuse him for the day.

The Commission found that, when staffing permitted, the agency allowed complainant to use leave without pay and annual leave to attend Sabbath services, and permitted complainant to accrue compensatory time in order to avoid using leave. Nevertheless, there were occasions when complainant was required to work Sunday mornings. According to the record, in order to accommodate complainant at times when others requested leave before he did, the agency would have been required to remove an employee who was either already on annual leave or violate the collective bargaining agreement by granting complainant a permanent preference which it is not required to do. Thus, the Commission concluded that the agency acted in good faith to accommodate complainant's religious practices.

CONCLUSION

As stated, an agency is required to reasonably accommodate the religious practices of an employee or prospective employee, unless doing so would create an undue hardship. In order to constitute an undue hardship, the agency must show that accommodating complainant's religious practices creates more than hypothetical or de minimis monetary or efficiency costs.

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Footnotes

¹ 42 U.S.C. § 2000e(j).

² 29 C.F.R. § 1605.1.

³ 29 C.F.R. § 1605.2(c).

⁴ 29 C.F.R. § 1605.2(c)(2).

⁵ 29 C.F.R. § 1605.2(c)(2)(ii).

⁶ Heller v. EBB Auto Co., 8 F.3d 1433, 1438 (9th Cir. 1993); Turpen v. Missouri-Kansas-Texas Railroad Co., 736 F.2d 1022, 1026 (5th Cir. 1984).

⁷ Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977).

⁸ 29 C.F.R. § 1605.2(e)(2) (citing Hardison, supra).

⁹ Tooley v. Martin-Marietta Corp., 648 F.2d 1239 (9th Cir. 1981).

¹⁰ EEOC Appeal No. 07A40101 (August 3, 2005).

¹¹ EEOC Appeal No. 01A33035 (January 13, 2005).

¹² EEOC Appeal No. 07A40011 (March 26, 2004).

¹³ EEOC Appeal No. 01A14800 (May 23, 2003), request for reconsideration denied, EEOC Request No. 05A30945 (August 8, 2003).

¹⁴ EEOC Appeal No. 01A22273 (November 6, 2003).

¹⁵ EEOC Appeal No. 01A40636 (July 7, 2005).

¹⁶ EEOC Appeal No. 01A34768 (August 25, 2004).