The DIGEST Of Equal Employment Opportunity Law

Volume XV, No. 3

Office of Federal Operations

Summer Quarter 2004

---

Inside

Selected EEOC Decisions on:

Articles:

PROCEDURAL CASE UPDATE

"DIRECT THREAT" IN DISABILITY CASES

---

---

SELECTED EEOC DECISIONS

After-Acquired Evidence

After-Acquired Evidence Does Not Bar Agency Liability for Unlawful Discrimination. The Commission affirmed an EEOC Administrative Judge's (AJ's) finding that complainant was subjected to disability discrimination when he was not selected for a part-time Internist's position. On appeal, the agency did not dispute the AJ's findings and conclusions, but rather argued that complainant was not a U.S. citizen, and therefore was not qualified for the position for which he had applied. The Commission noted that complainant's status as a non-citizen was after-acquired evidence, which did not relieve the agency of liability. Further, the Commission stated that the agency failed to establish that an exception would not have been made in complainant's case, given that two individuals had turned down the position, that it remained unfilled for a full year, and that complainant had previously been employed by the agency. EEOC ordered the agency to offer complainant the position, with back pay, pay complainant $15,000.00 in compensatory damages, and pay attorney's fees. Williams v. Department of Veterans Affairs, EEOC Appeal No. 07A30118 (April 21, 2004).

Articulated Legitimate Reason Too Vague

Failure of Agency to Articulate Legitimate, Non- Discriminatory Reason for its Action Obviates Need to Prove Pretext. In this nonselection case, the Commission found that the agency's statement that the selectee was "better suited for the position," without more, was so generalized, conclusory, and vaporous as to offer no substantive explanation of the agency's action. EEOC noted that, in a previous decision, it had warned the agency that the selecting official's affidavit provided no information as to any particular criteria used in making the selection at issue. The Commission concluded that, having established prima facie cases of race, sex, and age discrimination, complainant prevailed on his complaint without having to make any demonstration of pretext. As part of its award of relief, the Commission ordered the agency to retroactively place complainant in the position at issue, with back pay, interest, and other benefits due him; consider disciplining the responsible management officials; and conduct an investigation into complainant's entitlement to compensatory damages under Title VII. Fullman v. United States Postal Service, EEOC Appeal No. 01A31036 (March 18, 2004).

Attorney's Fees

Attorney's Fees Denied for Non-Attorneys. The Commission declined to award fees for employees, other than for complainant's attorney, who were listed as having worked on the case. The fee petition failed to specify which individuals were attorneys, paralegals, and law clerks (for whom fees may be reimbursed), and which employees were clerical or administrative staff (whose hours are not reimbursable). In addition, complainant failed to show that work performed by a non- witness consultant was reasonably necessary to the case. The Commission also determined that the agency had properly awarded only 25 percent of the fees claimed, given that complainant had prevailed on only one of the four issues raised. Wilson v. United States Postal Service, EEOC Appeal No. 01A31575 (March 9, 2004), request to reconsider denied, EEOC Request No. 05A40734 (May 20, 2004).

Attorney's Fees Reduced for Exaggerated and Duplicative Services. The Commission reduced the amount of attorney's fees claimed for pursuing a breach of settlement claim. The Commission noted that complainant was not entitled to fees associated with the agency's compliance with a provision concerning payment of a separation incentive, because the described services appeared to be exaggerated and duplicative, and complainant substantially contributed in pursuing the breach claim. In addition, the breach appeared to be the result of an administrative oversight rather than intentional noncompliance, and the agency corrected the error when it was brought to the agency's attention. EEOC also excluded amounts claimed for work performed after the deadline for submitting appeal statements had expired, as well as amounts claimed for assistance with calls to Congress, which it viewed as not essential to preparing the appeal. Kahn v. Department of Veterans Affairs, EEOC Appeal No. 01A31592 (February 10, 2004).

Burden of Proof - Reasonable Accommodation

Complainant Bears Burden to Support Request for Reasonable Accommodation. When complainant was reassigned from Germany to Japan, he alleged that the agency denied him reasonable accommodation under the Rehabilitation Act, because he would be able to receive better medical treatment in Germany for his bipolar disorder. The Commission, assuming that remaining in Germany "for better medical treatment" was a form of reasonable accommodation, found that the AJ properly denied complainant's claim, since complainant had failed to provide any evidence to support his assertion that the treatment he would receive in Japan would be inferior to that in Germany. Fitzgerald v. Department of Defense, EEOC Appeal No. 01A30880 (February 5, 2004).

Burden of Proof - Mixed Motive

Denial of Individual Relief Proper Where Agency Would Not Have Selected Complainant Even Absent Discrimination. Complainant alleged that he was subjected to gender discrimination when he was not selected for a Special Agent-in-Charge position. The agency acknowledged that gender was impermissibly considered in the selection process when one candidate was selected solely to appease a management official's desire for diversity candidates. Nevertheless, the Commission found that the agency established, by clear and convincing evidence, that complainant would not have received the position even absent discrimination. Specifically, complainant's interview did not go well, and he was not referred by the initial panel while four males were referred for consideration. As a result, placement in the position and back pay were not awarded as relief. EEOC required the agency to post a notice of discrimination; pay attorney's fees to complainant; and provide training to the responsible management officials regarding their responsibilities under Title VII to eliminate discrimination in the Federal workplace. Straughn v. Department of Commerce, EEOC Appeal No. 01A24320 (April 21, 2004).

Class Actions

(The summaries that follow, wherein the Commission denied class certification, exemplify what is required in order for a class action to proceed to a merits determination.)

Cosentine, et al. v. Department of Homeland Security, EEOC Appeal No. 01A23856 (March 24, 2004) Complainant failed to satisfy commonality requirement because she did not identify any agency policy that had the effect of discriminating against the class as a whole, but, instead, had made a generalized claim of discrimination. Complainant had failed to show how her claim of not being interviewed and selected for a Deputy District Director's position possessed commonality with individuals in many different job categories and different grade levels. In addition, complainant failed to establish typicality by showing any type of nexus between her individual claim and those claims of the purported class.

Martin, et al., v. United States Postal Service, EEOC Appeal No. 01A24445 (April 22, 2004) Purported class failed to meet requirements of commonality, typicality, and numerosity. Class agent asserted that African-American employees were provided with more opportunities for higher- level positions and better break and lunch times than White employees, who also were purportedly discriminated against with regard to scheduling, reassignment, and discipline. Complainant's claim lacked specificity as to the claims of other putative class members and changes in their terms or conditions of employment. Complainant further failed to provide the eventual size of the class and, as a lay person, provided no evidence that he was adequately skilled to protect the interests of the class or would retain counsel.

Mathias, et al., v. United States Postal Service, EEOC Appeal No. 01A30838 (April 29, 2004) Three potential class members does not satisfy the requirement of numerosity. The Commission found no evidence of impracticality in consolidating the three hearing-impaired individuals' claims with regard to purported failure of agency to provide interpreters.

Compensatory Damages

(The following recent decisions illustrate the circumstances under which compensatory damages are awarded and the appropriate amounts.)

Commission Rejects Agency Award of $5,000.00 and Awards $150,000.00 in Non-Pecuniary Damages. Complainant appealed from the agency's final decision awarding compensatory damages in the amount of $5,000 in connection with complainant's claims arising from discrimination in violation of Title VII (retaliation) and the Rehabilitation Act (herniated disc), when, inter alia, a supervisor went on a "crusade" to remove complainant from limited duty status, force him to request light duty and submit medical documentation to support that request. In addition, complainant filed a second complaint, claiming that the agency issued him a Notice of Separation - Disability. In both instances, the Commission found discrimination and ordered the agency to conduct a supplemental investigation into complainant's entitlement to compensatory damages.

The Commission found, in pertinent part, that complainant established a causal connection between the discriminatory action and the resulting harm. Several witnesses, including his psychologist, connected complainant's emotional distress to the agency's adverse employment actions, which dated back to 1994. In this regard, the Commission noted the AJ's conclusion that the evidence pointed to discrimination as the reason for the supervisor's actions, including denying complainant the opportunity to return to work starting in 1994, and then placing him on AWOL status and eventually removing him from his position. EEOC found that complainant presented sufficient evidence establishing that the agency's actions caused him depression, social withdrawal, weight gain, anxiety, sleeplessness, feelings of hopelessness, anger, paranoia, victimization, constant fear of unjustified job loss, loss of self- esteem, severe financial strain, loss of his home and future home, familial strain, and the added physical pain associated with his herniated disc. Many of these symptoms lasted for at least 8 years, and were expected to last indefinitely. Kloock v. United States Postal Service, EEOC Appeal No. 01A31159 (February 5, 2004).

EEOC Awards $70,000.00 in Non-Pecuniary Damages for Agency's Failure to Accommodate Disabled Employee. The Commission affirmed the AJ's award, finding evidence in the record to support complainant's claim that his hernia was caused because he was forced to stand for long periods on his injured hip. Complainant had previously sustained a hip fracture that resulted in several surgeries leading to more than one artificial hip. Rejecting the agency's defense that it had acted in good faith, the AJ found that complainant was living with severe pain in his hip when the agency ordered him to perform his duties without the aid of a chair. The agency asserted that the requested accommodation of a chair would present a tripping hazard to other employees. The Commission concluded, however, that the agency had made no attempt to evaluate the risk of potential harm from the use of a chair at the machine where complainant worked. Evanovich v. United States Postal Service, EEOC Appeal No. 07A20029 (May 13, 2004).

Commission Affirms AJ's Award of $50,000.00 in Non-Pecuniary Damages in Reprisal Claim. EEOC noted that the agency's actions in stripping complainant of her supervisory duties and demoting her, actions which violated the anti- retaliation clause of Title VII, resulted in stress- induced ailments. Specifically, the Commission found that complainant suffered from hypothyroidism, hypocholesterolemia, and chronic depression. The stress experienced by complainant as a result of the retaliation manifested itself as headaches, fatigue, uncontrolled tearfulness, anxiety, fearfulness, inability to concentrate, profound dysphoria, and exacerbated depression. Arizola v. Department of Homeland Security, EEOC Appeal No. 07A30132 (February 4, 2004).

EEOC Awards $3,000.00 for Agency Failure to Accommodate Deaf Employee. Complainant claimed that the agency forced her to attend training without the accommodation of a qualified note taker. She stated that the threat of discipline caused her anxiety and stress and that she felt totally isolated and closed off during training. She also felt disturbed and was made to feel incompetent. Complainant averred that her spirits were depressed, and she felt emotionally and physically sick. Complainant did not submit medical documentation in support of her claim for compensatory damages, nor did she provide statements from others. The Commission found that, given the evidence on the severity and duration of the emotional distress, an award of $3,000.00 in compensatory damages was appropriate. Taylor v. Department of the Interior, EEOC Appeal No. 01A34292 (May 3, 2004).

Disability Law - Discipline

Reasonable Accommodation is Prospective and Agency Not Required to Excuse Past Behavior Even If Resulting From Disability. Complainant was involved in a traffic incident, which led to a criminal charge of driving under the influence (DUI). Before this incident, the agency had no notice that complainant had any type of alcohol problem. The agency was already in the process of terminating complainant, a probationary police officer, when he disclosed his condition of alcoholism. Without prior notice of the complainant's medical condition, the agency was not required to provide reasonable accommodation of complainant's condition related to his DUI arrest. Moreover, the Commission noted that an agency is not required to excuse past misconduct even if it is the result of the individual's disability. The agency may impose discipline where there is a violation of a job-related conduct rule, which is consistent with business necessity. Thus, the Commission determined that the agency was not obligated under the Rehabilitation Act to disregard complainant's DUI charge. Hernandez, III, v. Department of the Navy, EEOC Appeal No. 01A41079 (March 30, 2004).

Disability Law - Prima Facie Case

(In the following cases, the Commission found that the complainant had failed to set forth a prima face case by presenting sufficient evidence from which an inference of discrimination could be drawn.)

Johnson v. Department of the Navy, EEOC Petition No. 03A40047 (March 25, 2004) Petitioner, who worked as a painter, failed to show how his being medically restricted from working in confined spaces, due to claustrophobia, extended beyond his specific position as a painter in a submarine setting. As such, complainant failed to demonstrate that he was substantially limited in performing a class of jobs, or broad range of jobs in various classes.

Abbott v. United States Postal Service, EEOC Appeal No. 01A30479 (March 1, 2004), request to reconsider denied, EEOC Request No. 05A40630 (April 29, 2004) Complainant not qualified individual with a disability tear in right knee was only temporary condition, which was only slightly restricting.

Dismissals- "Without Prejudice"

Dismissals "Without Prejudice" Permit Reinstatement of EEO Complaint. After filing an EEO class complaint, complainant filed a civil action in a United States District Court. The AJ assigned to the EEO complaint granted the parties' request for dismissal, without prejudice. The Commission affirmed the AJ's decision and reversed the agency's final action and appeal, which had argued that the AJ should have dismissed the complaint "with prejudice." Finding that there was no AJ determination of the complaint on the merits such that it would bar relitigation by the same parties of the same claims, under the doctrine of res judicata, the Commission found the AJ's dismissal "without prejudice" to be proper. EEOC noted that the only issue under consideration was the posture of the case, in light of the impending civil action, and that, absent a final ruling by the Commission, dismissal without prejudice was appropriate. Herron v. Department of Agriculture, EEOC Appeal No. 07A40069 (April 20, 2004).

Dismissals - After Hearing

AJ May Dismiss Complaint on Same Grounds Agency Could Have Earlier. The Commission found that an AJ did not abuse his discretion in finding, after a hearing, a complaint to be untimely. EEOC rejected complainant's objection to the agency's raising the issue of timeliness at the hearing, as well as his argument that the AJ should not have considered that issue. Witzig v. Department of Health and Human Services, EEOC Appeal No. 01A31398 (February 5, 2004).

Dismissals - Failure to Cooperate

Agency Must Provide 15-Day Notice. The Commission found the agency's dismissal for failure to cooperate improper because two of the EEO Specialist's electronic mail messages requesting clarification did not advise complainant of the requisite 15-day notice to provide the requested information. The Commission found that complainant's failure to respond to a separate, written request for more information was not sufficient to show a failure to cooperate. Sakamoto v. Department of Homeland Security, EEOC Appeal No. 01A35369 (February 5, 2004).

Sufficient Information Precludes Dismissal for Failure to Cooperate. The agency dismissed a complaint for failure to cooperate following the issuance of a notice asking for more information and advising complainant that failure to respond would result in the dismissal of his complaint. Complainant responded, but rather than providing the requested information, he indicated that he did not understand the agency's request for more information, given the detailed information that he had already provided the agency. The Commission reversed the dismissal, noting that the formal complaint and the EEO Counselor's report contained sufficient information for the processing of complainant's complaint. The Commission emphasized that dismissal for failure to cooperate should not be used when the agency has sufficient information to proceed. Dismissal on this basis, the Commission added, is only appropriate where complainant has engaged in delay or contumacious conduct and the record is insufficient to permit adjudication. McLain v. Department of the Army, EEOC Appeal No. 01A34669 (January 30, 2004).

Dismissals - Failure to State Claim

Same Sex Harassment States a Claim. The agency dismissed complainant's claim that he had been physically assaulted by a male co-worker for failure to state a claim. The incidents included a co-worker pressing his pants against complainant's buttocks as if he wanted to have sexual relations with him, later that same day grabbing complainant's arms, squeezing his muscles, and making a groping gesture. EEOC found that the incidents cited by complainant were sufficiently severe and pervasive so as to state a claim of harassment. Marco v. United States Postal Service, EEOC Appeal No. 01A35057 (January 20, 2004).

Generalized Grievance Fails to State a Claim. A complainant may not pursue a generalized grievance unless there are further allegations of some specific injury as a result of the purported discriminatory practice. Here, the Commission found that the agency properly dismissed the complaint, which was consolidated with 14 other complaints by Nurse Administrators. The Nurse Administrators had alleged that they were not being paid commensurate with their skills, and raised other pay and grade issues. Mais v. United States Postal Service, EEOC Appeal No. 01A31489 (January 30, 2004), request to reconsider denied, EEOC Request No. 05A40447 (March 26, 2004).

Findings of Discrimination

(What follows is a selection of recent Commission decisions finding workplace discrimination and awarding appropriate relief to the complainants.)

Under the ADEA

Nonselection Violates the Anti-Retaliation Provisions of the ADEA. The Commission found that the agency retaliated against complainant for prior EEO activity when it failed to select him for the position of pilot. Complainant, a GS-12 customs pilot, applied for the position of GS-13 pilot, in September 1996. He had testified in April and November of 1996 on behalf of two co- workers at two MSPB hearings, one of which involved an age discrimination claim. The agency selected a total of five applicants for the position. The Commission found that the agency's explanations for not selecting complainant, i.e., that he was deficient in technical skill, cockpit management, surveillance management, and overall attitude, were a pretext to disguise discrimination based on reprisal. There was no evidence in the record that complainant received any written feedback from his supervisors documenting the alleged deficiencies.

The Commission further found that complainant had far more combined law enforcement and flying experience than the selectees and possessed the highest civil flight rating available. In contrast, one selectee had no law enforcement experience, and three of the five selectees had fewer total flying hours than complainant. The Commission found significant that complainant's name had been left off the best qualified list submitted to supervisors for evaluation for a second round of selections, after being on the list in the first round, yet agency officials were not able to explain why. The Commission also found that the Aviation Branch Chief, who was aware of complainant's MSPB participation, did not include complainant's name on the selection roster. By way of relief, the EEOC ordered the agency to promote complainant retroactively, provide back pay, and consider disciplinary action against the responsible management officials. Cardozo v. Department of Homeland Security, EEOC Appeal No. 07A30014 (June 2, 2004).

Under Disability Law

Discontinuation of Accommodation Violated the Rehabilitation Act. After accommodating complainant's restrictions concerning lifting and pushing/pulling, the agency sent complainant for a fitness for duty examination, which determined that she was fit for duty with a temporary weight restriction. Complainant, a Pharmacy Technician, continued to request reasonable accommodation. The Commission found that the agency failed to provide reasonable accommodation when her supervisor required complainant to push an IV cart, which exceeded her restrictions, and admonished her for insubordination when she refused to push a dose cart and lift a box of paper. The Commission noted the supervisor's assertion that the agency had been providing complainant with assistance and removing the lifting and pushing/pulling requirements of her position for some time. The Supervisor did not furnish any argument or evidence that continuing with the assistance would cause an undue hardship. The Commission concluded that the agency violated the Rehabilitation Act in failing to provide reasonable accommodation and was liable for compensatory damages because it failed to supply either argument or evidence that it made a good faith effort to reasonably accommodate complainant. EEOC ordered the agency to determine, with complainant's cooperation, whether continued reasonable accommodation was needed and in what form; to remove reference to the proposed admonishment from complainant's record; and to give complainant notice of her right to submit objective evidence in support of her claim for compensatory damages. LaCombe v. Department of Veterans Affairs, EEOC Appeal No. 01A23543 (March 24, 2004).

Pre-Employment Inquiry Violated Rehabilitation Act. The Commission found that an agency official's question to complainant during a job interview asking whether he could really do the job since he was "drawing disability" for his back, flat feet, and bad leg constituted a prohibited pre-employment inquiry, and thus was impermissibly disability- related. The Commission noted that restrictions on such disability-related inquiries and medical examinations apply to all employees and not just to those with disabilities. EEOC ordered the agency to review and, if necessary, revise its pre-hire interview questions; provide training to the agency official, as well as to consider disciplining him; and to investigate complainant's entitlement to compensatory damages. Edwards v. Department of Veterans Affairs, EEOC Appeal No. 01A30010 (February 12, 2004).

No Showing of Disability Required for Improper Disclosure of Individual's Health Condition. The Commission found that complainant's supervisor violated the Rehabilitation Act when he improperly disclosed to a co-worker that complainant was diagnosed with diabetes. The Commission noted that the prohibition against improper release of medical information applies to nondisabled individuals, as well as disabled individuals. In addition, it is not necessary for the aggrieved person to provide a showing of harm beyond the violation itself. The Commission directed the agency to provide appropriate training to the supervisor, consider disciplining her, and give complainant notice of her right to seek compensatory damages. Shaw v. Department of Transportation, EEOC Appeal No. 01A30273 (March 11, 2004), request to reconsider denied, EEOC Request No. 05A40666 (May 18, 2004). And see Spencer v. Department of Health and Human Services, EEOC Appeal No. 01A30525 (April 19, 2004) (improper dissemination of medical diagnosis).

Under Title VII

Gender Discrimination: Sexual Harassment Found. The Commission found that complainant was subjected to discriminatory harassment by a co- worker in the form of unwelcome sexual exposure and attempted sexual assault. The co-worker denied the allegations. The Commission found that complainant's account of the events was sufficiently detailed and internally consistent, and found her account to be credible. In addition, the Commission stated that, while the agency took positive actions in an attempt to keep the workplace free from discrimination, such as initiating an internal investigation and separating complainant from the accused harasser, the investigation lacked the depth necessary to uncover harassment in any circumstances other than the exceedingly rare occasions where the harassment occurs in front of a witness. In addition, the agency failed to take appropriate steps to ensure that the harassment would not recur, and complainant's schedule continued to overlap with the harasser's. Complainant was, therefore, forced to accept a demotion. The Commission awarded complainant $25,000.00 in non-pecuniary compensatory damages and instructed the agency to reinstate complainant to her former position with back pay. Wilson v. Department of Justice, EEOC Appeal No. 01A23614 (February 3, 2004), request for reconsideration denied, EEOC Request No. 05A40510 (April 5, 2004).

Gender Discrimination: Hostile Environment. The Commission affirmed the AJ's finding that complainant was subjected to hostile environment sexual harassment by a co-worker. The Commission noted that the harassment continued after complainant notified management and after the alleged harasser was reassigned. Further, complainant's second-line supervisor did not keep track of the matter, and the record showed that the agency did not follow its own harassment policy. The Commission ordered the agency to pay complainant $15,000.00 in non-pecuniary compensatory damages and provide appropriate training for the responsible employees. Lovett- Noell v. Department of the Navy, EEOC Appeal No. 07A20028 (January 15, 2004).

Racial Discrimination: Hostile Work Environment. The Commission found that complainant was subjected to unwelcome conduct related to his race when a co-worker made unprompted racially- charged comments. The Commission determined that had complainant established that the incident was sufficiently severe to render his work environment hostile and that the co-worker had supervisory authority over complainant because the co-worker was the Team Leader. The Commission found liability due to the failure of the agency to proffer that it had a policy and complaint procedure against the harassment. The Commission ordered the agency to provide appropriate training of, and consider disciplining, the officials involved, and give complainant notice of his right to submit evidence in support of his claim for compensatory damages. Wilson v. Department of Veterans Affairs, EEOC Appeal No. 01A30907 (February 23, 2004).

Religious Discrimination: Failure to Accommodate. Complainant, a Catholic, requested not to work on Christmas and New Year's Day. The AJ found that complainant clearly communicated the request to her supervisor and the Postmaster, thereby rejecting the agency's argument that she failed to inform the agency of her need for religious accommodation when she did not include it on "Form 3971." The AJ found that the agency failed to make a good faith effort to accommodate complainant's religious beliefs and failed to show that the accommodation she requested would result in an undue hardship to the agency. The Commission found substantial evidence to support the AJ's factual findings and noted that the AJ had correctly applied the appropriate regulations, policies, and laws. As part of the remedies ordered by EEOC, the Commission directed the agency to pay complainant $3,000.00 in compensatory damages, and engage in an interactive discussion with complainant with regard to any future requests for religious accommodation, to determine the requirements of the religious practice, the nature of the accommodation sought, the burden imposed upon the agency in granting the requested accommodation, and the availability of alternative accommodations. Rolfe v. United States Postal Service, EEOC Appeal No. 07A40011 (March 26, 2004).

Retaliation Discrimination: Protected Activity. Complainant engaged in protected EEO activity when she told a supervisor and a manager, on February 24, 2000, and February 25, 2000, that she was sexually harassed by her first-line supervisor. Subsequently, on March 30, 2000, complainant was terminated. The Commission noted that management officials had knowledge of complainant's prior EEO activity and held that the AJ's finding of a nexus between complainant's protected activity and her termination was supported by substantial evidence because of the relatively-short time period between the prior EEO activity and the adverse action. EEOC ordered the agency to reinstate complainant with back pay and pay her $9,000.00 in non-pecuniary compensatory damages and $19,100.98 in attorney's fees. Arroyo v. United States Postal Service, EEOC Appeal No. 07A30065 (February 23, 2004).

Retaliation Discrimination: Opposing Perceived Unlawful Workplace Bias. The Commission found that the agency, through its managers and co- workers and over a sustained period of time, subjected complainant -for opposing agency practices that she viewed as not in compliance with the agency's EEO responsibilities to a hostile and retaliatory work environment that permeated, tainted and motivated the actions taken by agency officials against her. Supervisors threatened complainant with an adverse personnel action if she continued to challenge the agency's lack of EEO activity. The Commission also found that complainant suffered an adverse change in the terms of her assignments and work relationships. By way of relief, EEOC ordered, in part, the agency to offer complainant an acceptable reassignment, training of the responsible management officials, as well as to investigate complainant's entitlement to compensatory damages. Anthony v. Department of the Interior, EEOC Appeal No. 01A20111 (March 10, 2004).

Investigation in the EEO Process

Agencies Must Develop "Appropriate Factual Record." The factual record in an EEO investigation must be such that a reasonable trier of fact could draw conclusions as to whether discrimination has occurred. The Commission remanded this matter for supplementation of the record when it found that the agency official did not adequately explain why he made his selection when stating that the selectee was in a "business sense" the "right choice." The agency's investigator did not ask the selecting official to explain with greater specificity why he chose the selectee. Robey v. United States Postal Service, EEOC Appeal No. 01A41333 (April 15, 2004).

Jurisdiction

Dismissal of Appeal for Lack of EEOC Jurisdiction. The Commission dismissed complainant's appeal from the AJ's closure of his complaint. The AJ noted that the EEO complaint was closed because the matter was resolved as part of a Pre-Arbitration Settlement Agreement. The Commission declared that complainant was attempting to use the EEO process to obtain compliance with a grievance settlement under the Collective Bargaining Agreement and that such a claim was outside the Commission's jurisdiction. Cobb v. United States Postal Service, EEOC Appeal No. 01A40383 (February 19, 2004), request for reconsideration denied, EEOC Request No. 05A40561 (March 31, 2004).

Dual-Status Employees. Complainant remained on active military duty at all times, but was detailed to an agency to perform civilian duties. Complainant claimed that she should be considered an employee of the agency for Title VII purposes. The EEOC remanded the matter to the agency for further processing because the record was insufficient to determine whether complainant was an employee of the agency under the common law of agency test applied by the Commission. Pugliese v. Department of Justice, EEOC Appeal No. 01A34443 (April 15, 2004).

Notice in the EEO Process

Agency Failed to Meet Its Hearing Notice and Investigative File Obligations. The Commission vacated the agency's final decision finding no discrimination and remanded the complaint when, on appeal, complainant argued that the agency never provided her with the investigative file or with the notice of her right to request a hearing before an EEOC AJ. The Commission noted that there was no evidence in the record indicating that complainant ever received the investigative file or the notice of the right to request a hearing. Brown v. Department of Justice, EEOC Appeal No. 01A31111 (March 23, 2004).

Official Time

Agency Did Not Improperly Deny Official Time. Complainant claimed that she was denied official time to meet with her representative prior to initiating contact with an EEO Counselor. The Commission noted that, while it has previously granted official time to initiate the counseling process when complainants were required to provide detailed written information regarding the alleged incident, the record in the instant case did not reveal that complainant was required to provide such a statement. In addition, complainant acknowledged that she could have made a phone call to request counseling. Welch v. United Postal Service, EEOC Appeal No. 01A35334 (March 19, 2004).

Denial of Official Time Does Not Justify Waiver of Time Limitation for Initiating EEO Counseling. The Commission noted that initiating EEO Counselor contact generally involves actions that do not require an extended time commitment, such as making a telephone call or writing a brief message to the Counselor indicating an intention to begin the EEO process. Montgomery v. United States Postal Service, EEOC Request No. 05A40241 (February 10, 2004).

Agency's Grant of Official Time Was Proper. The Commission found that agency's grant of one hour of official time for complainant to consult with his representative during informal counseling was proper. The Commission noted that complainant failed to justify his need for an entire day off, given that he was not preparing for an affidavit, a hearing, a meeting with an investigator, or an appeal. Complainant was also not entitled to travel expenses pursuant to EEOC's regulations. Flores v. United States Postal Service, EEOC Appeal No. 01A34485 (February 11, 2004).

Sanctions

AJ Properly Cancelled Hearing. The Commission concurred with the AJ's decision to cancel the hearing when complainant failed to comply with an Order to respond to the agency's discovery requests. The Commission noted that complainant failed to support her claim that her medical condition prevented her from understanding the requirements of the AJ's Order, stating that the record showed that complainant received assistance from her representative during the applicable time. In addition, complainant delayed requesting the information from her medical provider until over one month after the AJ's Discovery Order was issued and after the deadline for submitting the documentation had passed. Williams v. Office of Personnel Management, EEOC Appeal No. 01A30903 (February 27, 2004).

AJ Improperly Cancelled Hearing. The record contained no evidence that complainant ever received the Scheduling Order instructing her to submit certain information, or that the AJ issued complainant a Notice and Order to Show Cause why the complaint should not be dismissed for failure to prosecute. Accordingly, the Commission remanded the matter for an administrative hearing. Brent v. Department of Justice, EEOC Appeal No. 01A30035 (February 10, 2004).

Settlement Agreements

Agreement Void for Lack of Consideration. The agency's agreement to provide complainant with an accurate, updated job offer that accommodated the restrictions supplied by her physician provided complainant with nothing more than that to which she was entitled as an employee covered by OWCP. The Commission noted that, while the agency agreed to complete various stages of the job offer process by certain dates, the dates had expired. Thus, the agreement was unenforceable. Accordingly, the Commission directed the agency to reinstate the complaint at the point at which processing had ceased. Martinez v. United States Postal Service, EEOC Appeal No. 01A41314 (April 26, 2004).

Noncompliance Found. The Commission found that the agency failed to make a job offer within 60 days as specified in the settlement agreement. The Commission noted that the agency did not take action until after complainant alleged breach, and approximately two years after the settlement agreement was executed. The agency was ordered to reinstate and process the complaint from the point processing ceased. Jeffries v. United States Postal Service, EEOC Appeal No. 01A41487 (April 22, 2004).

Timeliness

Commission Reconsiders Five-Day Presumption of Receipt of Mail, for International Mail. Complainant's initial request for reconsideration was dismissed as untimely, when the Commission applied presumption that its previous decision had been received within 5 calendar days after it was mailed. After complainant, who was in Japan, argued that the international mail takes 7 to 10 days, the Commission accepted the request for reconsideration as timely. Apkarian v. Department of Defense, EEOC Request No. 05A40456 (April 23, 2004).

Agency Always Bears Burden of Obtaining Sufficient Information to Support Reasoned Determination as to EEO Counselor Contact. Complainant's complaint was dismissed for untimely EEO counselor contact. Complainant stated on appeal that he timely initiated counselor contact by telephoning the agency's EEO Office and leaving a message. The Commission found credible complainant's claim regarding timely contact with an EEO Counselor and noted that the agency had failed to offer evidence in rebuttal. The agency dismissal was reversed and the complaint was remanded for processing. Esparza v. Department of Homeland Security, EEOC Appeal No. 01A32852 (March 12, 2004).

Time to File Complaint Extended When 15th Day of 15-Day Filing Period Ends on a Sunday and Following Monday is a Legal Holiday. The Commission found complainant's complaint to be timely filed, according to the postmark, when the complaint was filed the day after the legal holiday. Chambers v. United States Postal Service, EEOC Appeal No. 01A35120 (February 26, 2004).

PROCEDURAL CASE UPDATE

The following recently-issued administrative decisions address the propriety of procedural dismissals under EEOC Regulation 29 C.F.R. . 1614.107(a).

Failure to state a claim under 29 C.F.R. . 1614.107(a)(1)

Cases which did not state a valid claim:

Issues concerning the processing of claims by the Department of Labor's Office of Workers' Compensation Programs, including information and letters sent to that office, constitute collateral attacks on proceedings in other forums, and do not state justiciable claims. Statuto v. USPS, EEOC Appeal No. 01A41334 (April 12, 2004); Charles v. Department of Labor, EEOC Appeal No. 01A34699 (March 19, 2004); Strong v. Department of Health & Human Services, EEOC Appeal No. 01A33357 (March 9, 2004), request for reconsideration denied, EEOC Request No. 05A40605 (April 29, 2004).

Matters concerning the negotiated grievance procedure do not state a claim within EEOC's jurisdiction. Veasley v. USPS, EEOC Appeal No. 01A40677 (April 12, 2004); Ho v. USPS, EEOC Appeal No. 01A34643 (March 31, 2004) (enforcement of a grievance settlement); Gonzalez v. USPS, EEOC Appeal No. 01A41293 (April 12, 2004) (denial of time to perform union steward duties); Huerta v. Department of the Air Force, EEOC Appeal No. 01A40054 (February 19, 2004), request for reconsideration denied, EEOC Request No. 05A40611 (April 15, 2004); McKinnon v. USPS, EEOC Appeal No. 01A41120 (March 19, 2004), request for reconsideration denied, EEOC Request No. 05A40646 (April 29, 2004) (compliance with an arbitrator's award); Sampson v. Department of the Treasury, EEOC Appeal No. 01A33911 (March 19, 2004) (denied the right to appeal to an arbitrator); Shalow v. USPS, EEOC Appeal No. 01A41181 (April 14, 2004) (denied the right to see a union steward).

Notice from a federal Circuit Court that a supervisor had filed a claim against the complainant does not state a justiciable claim of discrimination. Armenteros v. USPS, EEOC Appeal No. 01A40663 (February 25, 2004).

Complaint alleging discrimination with regard to letters concerning a defaulted home loan received from the agency did not state a claim, as complainant was neither an employee nor applicant for employment. Guy v. Department of Veterans Affairs, EEOC Appeal No. 01A40515 (February 26, 2004).

Complainant's receipt of a letter advising that he must make an election to return to work, apply for disability retirement, or resign, did not state a claim where the record showed that complainant did not make such an election and was not removed from the agency. Carter v. USPS, EEOC Appeal No. 01A40153 (February 25, 2004), request for reconsideration denied, EEOC Request No. 05A40559 (April 8, 2004).

Issues concerning discussions, verbal reprimands, threats of discipline, and disciplinary interviews, without more, do not state justiciable claims. Caudill v. Department of Labor, EEOC Appeal No. 01A33971 (March 19, 2004) (complainant was instructed not to return to a job site and, after the instruction was rescinded, accused of refusing to go to the site); Trevino v. Department of Homeland Security, EEOC Appeal No. 01A33896 (March 19, 2004) (isolated comment regarding older inspectors and management's failure to consult older supervisors regarding personnel matters does not state a claim where no indication complainant received any discipline, demotion, was denied training or received undesirable performance appraisal); Ball v. USPS, EEOC Appeal No. 01A40996 (March 17, 2004) (verbal reprimand and interview for discipline); Brenner v. USPS, EEOC Appeal No. 01A35409 (February 25, 2004), request for reconsideration denied, EEOC Request No. 05A40591 (April 14, 2004) (complainant received a letter advising him that he was not excused from training and could be disciplined if he refused to go, but was not actually required to attend the training); Harris v. USPS, EEOC Appeal No. 01A40887 (February 19, 2004) (letter of warning reduced to an official discussion prior to the filing the EEO complaint did not state a claim, and complainant made no claim that the discussion was recorded in any personnel or supervisory files, or could be used as a basis for future discipline); Green v. Department of Justice, EEOC Appeal No. 01A41309 (April 15, 2004) (official outside of complainant's chain of command yelled a derogatory statement at him).

Complaints concerning non-selection fail to state a claim when the complainant did not apply for the specific position at issue. Mize v. USPS, EEOC Appeal No. 01A32704 (March 19, 2004), request for reconsideration denied, EEOC Request No. 05A40598 (April 29, 2004); Hailer v. Department of the Air Force, EEOC Appeal No. 01A40961 (March 12, 2004), request for reconsideration denied, EEOC Request No. 05A40625 (April 23, 2004).

Claim that another employee was promoted pursuant to an EEO settlement agreement may not be considered an independent act of discrimination against those not benefitted by the agreement unless there is proof of bad faith in the making of the agreement. Bromberek v. Department of Transportation, EEOC Appeal No. 01A40877 (March 3, 2004); Hall v. Department of Transportation, EEOC Appeal No. 01A40884 (March 3, 2004).

Complainant was not aggrieved by an alleged violation of the confidentiality provision of another employee's EEO settlement agreement. Riem v. Department of the Navy, EEOC Appeal No. 01A34766 (March 31, 2004), request for reconsideration denied, EEOC Request No. 05A40673 (May 11, 2004).

General complaint alleging that the agency does not negotiate settlement agreements in good faith does not state a justiciable claim. Parrish v. Department of Defense, EEOC Appeal No. 01A33767 (March 31, 2004).

Complainant was not aggrieved when agency officials mocked his web page through internal e-mail approximately 6 months after his separation. McNeill v. Department of the Air Force, EEOC Appeal No. 01A40366 (March 31, 2004).

Claim that an agency official failed to respond to complainant's e-mail concerning the status of his performance improvement plan failed to state a claim within the meaning of the EEOC Regulations. Ibern v. Small Business Administration, EEOC Appeal No. 01A40734 (March 31, 2004).

Complainant must allege that the action at issue resulted from a protected basis specified in the EEOC Regulations. Macer v. Social Security Administration, EEOC Appeal No. 01A35090 (March 4, 2004) (complainant did not identify any covered basis during EEO counseling or in her formal complaint, and while she made references to race and age discrimination on appeal, there was no valid complaint to amend at that time).

Complainant was not aggrieved as a result of being asked to complete a new injury compensation form, as there was nothing to indicate that he lost any wages, received discipline, or otherwise suffered an injury as a result thereof. In addition, while complainant stated that his starting time was changed, it was immediately changed back upon complainant's contact with the agency's administrative staff. McGhee v. USPS, EEOC Appeal No. 01A40932 (April 14, 2004).

Complaints found to state a valid claim of discrimination:

Letter to complainant notifying him that he was no longer eligible for merit payment and not entitled to the reserve balance on his EVA Variable Pay Program account concerned a monetary loss, and, therefore, complainant alleged a personal harm to a term, condition, or privilege of employment sufficient to state a valid claim. Flores v. USPS, EEOC Appeal No. 01A35149 (February 25, 2004).

Complainant was aggrieved when he received a "proficient" performance appraisal, which allegedly contained derogatory remarks. The Commission noted that other issues concerning threats to place complainant on a performance improvement plan, and a "Performance Improvement Assistance" memo were inextricably intertwined with the performance appraisal, and should be considered as one claim. Woods v. Department of Transportation, EEOC Appeal No. 01A34307 (February 25, 2004).

Claim that complainant was effectively denied a requested leave change from his originally scheduled vacation week constitutes a personal harm with respect to a condition or privilege of employment such that it states a justiciable claim. Rytelewski v. USPS, EEOC Appeal No. 01A41037 (March 9, 2004).

Complainant's claim that he was intimidated and belittled by his supervisor and other officials, that management added to his work without adjusting the time to perform it, and that management continued to excessively scrutinize him, and berate him about his efficiency and work habits after an inspection established that he was performing within the expected time frames, were of sufficient severity and duration to state a claim of discriminatory harassment. Brast v. USPS, EEOC Appeal No. 01A33257 (March 12, 2004).

Claim that complainant was required to complete the unfinished work of another employee rendered him aggrieved for purposes of the EEOC Regulations. Ramirez v. USPS, EEOC Appeal No. 01A40134 (March 17, 2004).

Complainant's claim that two supervisors cursed at and threatened her, threw a chair against the wall, and told her not to talk, in addition to other incidents, was sufficient to state a claim of harassment, given that the incidents allegedly took place in front of co-workers causing complainant public humiliation, and one incident was physically threatening. Connell v. USPS, EEOC Appeal No. 01A40588 (March 17, 2004).

The proper focus for dismissals of individual EEO complaints under the EEOC Regulations is on whether the complainant is allegedly aggrieved due to an unlawful employment practice, and a dismissal will be reversed where the agency bases that action on its view of the ultimate merits of the complaint allegations. Yost v. USPS, EEOC Appeal No. 01A33585 (February 11, 2004); Fulmer v. Department of Justice, EEOC Appeal No. 01A40186 (February 19, 2004); King v. Department of the Navy, EEOC Appeal No. 01A40422 (March 17, 2004).

The Commission found that while claims concerning the referral to an EAP Counselor do not state a claim, complainant's assertion that he was denied pay while at counseling while other employees were paid for their time states a justiciable claim. Ford v. USPS, EEOC Appeal No. 01A41287 (April 14, 2004).

Disparate application of a dress code states a claim, as it involves a term, condition, or privilege of complainant's employment. Clark v. USPS, EEOC Appeal No. 01A41211 (April 14, 2004).

Claim that the agency denied complainant's request fo file an injury compensation form states a claim under the EEOC Regulations. The agency did not dispute complainant's claim that the agency needed to start the process of completing the form in order to submit it to the Office of Workers' Compensation Programs. Sumrall v. Department of Veterans Affairs, EEOC Appeal No. 01A40842 (April 29, 2004).

States the Same Claim that is Pending or Has Been Decided Under Section 1614.107(a)(1)

The agency's dismissal of a claim concerning a change in seniority date and involuntary reassignment was proper, because complainant previously raised the same claim during EEO counseling, but failed to file a formal complaint on the matter. The Commission noted that a complainant who receives counseling on an issue, but does not go forward with a formal complaint is deemed to have abandoned the matter, and cannot raise it in another complaint. Sterling v. USPS, EEOC Appeal No. 01A34646 (February 19, 2004).

The agency properly dismissed complainant's complaint, which contained a generalized claim that he had been subjected to harassment since 1995. Complainant filed several prior complaints, which were accepted for investigation, raising various incidents of harassment, including being ordered to undergo a fitness for duty examination, and being subjected to disciplinary actions. Malewich v. USPS, EEOC Appeal No. 01A40485 (March 12, 2004).

The Commission found that the dismissal of complainant's claim that he was denied the right to return to duty was improper. The Commission stated that the matter at issue herein differed from that raised in a class complaint, in which complainant was one of the complainants, concerning a transfer that occurred over five years before the matters arising in the instant complaint. Chircop v. USPS, EEOC Appeal No. 01A32065 (March 17, 2004).

Complainant's claim that she was informed that the additional duties she was performing did not warrant an upgrade of her position differed from a prior complaint regarding complainant's job description, and was not the same issue as considered in any breach of settlement claim. The issue was a new matter that is properly considered as a separate complaint. Windsor v. Department of the Army, EEOC Appeal No. 01A31155 (March 31, 2004).

Untimely EEO Counselor Contact Under Section 1614.107(a)(2)

The following cases were properly dismissed for untimely EEO Counselor contact:

Complainant had constructive notice of the limitation period for initiating contact with an EEO Counselor. Richardson v. Department of the Navy, EEOC Appeal No. 01A40402 (April 12, 2004) (evidence that posters containing the applicable time limit were displayed at complainant's work site, and that complainant attended EEO training which included the limitation period); Bell v. Department of Homeland Security, EEOC Appeal No. 01A40013 (March 31, 2004) (affidavits of the Human Resources Manager and EEO Specialist stated that complainant received training in the EEO complaint process during new employee orientation and a copy of the training handout addressing the 45-day limitation); Perkins v. Department of the Air Force, EEOC Appeal No. 01A35410 (March 12, 2004) (complainant signed an Election of Alternative Dispute Resolution in connection with another complaint which set forth the 45-day limitation period for contacting an EEO Counselor, and received training on the issue); Wareham v. USPS, EEOC Appeal No. 01A41019 (March 9, 2004) (affidavit of management official describing the location of the EEO posters, plus a copy of the poster containing the applicable time limit); White v. Department of Veterans Affairs, EEOC Appeal No. 01A41505 (April 26, 2004) (statement of EEO Program Manager that EEO training, which included a discussion of the limitation period for initiating a complaint, had been conducted for all employees, and information was on display on the official EEO Board, as well as complainant's training history showing that he completed a mandatory sexual harassment training seminar).

Complainant had a reasonable suspicion of discrimination when she confronted her supervisor about allegedly inappropriate behavior in April 2000, but failed to initiate contact with an EEO Counselor until June 2002. Although complainant allegedly experienced additional effects from the discrimination in April 2002, the Commission noted that, in determining when the limitations period is triggered, the focus is on the time of the allegedly discriminatory act, and not when the consequences of the act become most painful. Fowler v. Department of Defense, EEOC Appeal No. 01A31683 (February 19, 2004).

The Commission found that the record did not support tolling the limitation period based upon the complainant's medical condition. Lomax v. Smithsonian Institution, EEOC Appeal No. 01A30144 (February 10, 2004) (complainant's medical documentation, containing only generalized statements as to his condition, was insufficient to support the contention that complainant was so incapacitated as to prevent him from timely contacting an EEO Counselor); Frey v. Federal Energy Regulatory Commission, EEOC Appeal No. 01A40974 (March 17, 2004) (medical documentation submitted did not show that complainant was so incapacitated that she was unable to contact the EEO office within the limitation period, especially given that she was able to pursue disability retirement during the period in question).

The Commission rejected complainant's contention that he was misled by the EEO poster's use of the term "may" (instead of "must") contact an EEO Counselor within 45-days, especially in light of evidence showing that complainant attended training which included a review of his EEO rights. Sebala v. Department of the Air Force, EEOC Appeal No. 01A40072 (March 17, 2004), request for reconsideration denied, EEOC Request No. 05A40728 (May 11, 2004).

Complainant reasonably suspected discrimination with regard to his performance award when he spoke with his Deputy about the fact that he was receiving less than his employees and peers, and, therefore, his contact with an EEO Counselor more than 45 days later was untimely. Hawk v. Department of Defense, EEOC Appeal No. 01A31656 (March 17, 2004).

Complainant initially contacted an EEO Counselor when he was denied training, but chose not to pursue the matter at that time. Complainant's subsequent contact with a Counselor, which was beyond the 45-day limitation period, was not timely. Gonicberg v. Department of the Navy, EEOC Appeal No. 01A34092 (February 25, 2004), request for reconsideration denied, EEOC Request No. 05A40607 (April 8, 2004).

Complainant's assertion that he was misinformed by his attorney concerning the requisite time limit to contact an EEO Counselor was insufficient to toll the applicable limitation period. Amoroso v. Department of Homeland Security, EEOC Appeal No. 01A35379 (March 31, 2004), request for reconsideration denied, EEOC Request No. 05A40741 (May 11, 2004).

Complainant's failure to contact an EEO Counselor until approximately 10 years after the allegedly discriminatory incident shows that he did not act with due diligence in pursuing his claim. Gallegos v. USPS, EEOC Appeal No. 01A40290 (March 31, 2004).

The fact that complainant did not recognize the action at issue as discriminatory was not sufficient to justify extending the limitation period for initiating a complaint. The Commission noted that the time limit for contacting an EEO Counselor shall not be extended simply because the complainant did not know that disability in general or that a particular disability was covered under the Rehabilitation Act. Caldwell-Ewart v. Department of State, EEOC Appeal No. 01A41512 (April 15, 2004).

Complainants waited to contact an EEO Counselor until they had proof of discrimination, and, as such, failed to timely contact an EEO Counselor to initiate their complaints. Dawson v. USPS, EEOC Appeal No. 01A40631 (March 17, 2004); Levels-McDavid v. Department of Labor, EEOC Appeal No. 01A40344 (April 29, 2004).

In the following cases, complainants' contact with the EEO Counselor was timely:

The agency failed to show that EEO posters were on display notifying complainants of the applicable limitation period. Paszko v. USPS, EEOC Appeal No. 01A40802 (February 27, 2004); Sangiovanni v. Department of the Navy, EEOC Appeal No. 01A31466 (March 31, 2004).

The agency failed to show that complainant had constructive knowledge of the limitation period for initiating a complaint. The posting on the agency's web site did not inform potential complainants of the limitation period, and complainant persuasively argued that he did not have an opportunity to learn the information during his orientation. Teichman v. Department of Homeland Security, EEOC Appeal No. 01A35163 (April 26, 2004).

Complainant's request for reassignments and transfers due to her medical condition were requests for accommodation which constituted a recurring violation. In addition, the Commission noted that retirement becomes effective, not when OPM finds that an employee is eligible, but when the agency actually makes the retirement effective and removes the individual from its employment rolls. Thus, complainant timely raised the issue after the agency finally placed her on disability retirement. Moore v. USPS, EEOC Appeal No. 01A34361 (February 19, 2004) (the Commission noted that issues concerning complainant's health insurance coverage and the agency's failure to correct an error therein were properly dismissed for untimely EEO Counselor contact).

The Commission found complainant's assertion that he left a timely telephone message with an EEO Office at another facility to be credible. The agency did not dispute complainant's assertion that he telephoned the EEO Office because there was no local EEO Office at his facility. Esparza v. Department of Homeland Security, EEOC Appeal No. 01A32852 (March 12, 2004).

Complainant timely initiated his EEO complaint within 45 days of reasonably suspecting the alleged discrimination. Symms v. Department of Homeland Security, EEOC Appeal No. 01A34453 (February 25, 2004) (complainant did not reasonably suspect discrimination until a significant period of time had passed without receiving any information regarding his application); Swanigan v. USPS, EEOC Appeal No. 01A33469 (March 31, 2004) (contact within 45 days of learning that a limited duty position he had requested was given to another employee with less time in limited duty status and less weight restrictions); Scott v. Department of Defense, EEOC Appeal No. 01A30846 (March 3, 2004) (contact within 45 days of learning the qualifications of the selectee for the position at issue in his complaint); Rivera v. USPS, EEOC Appeal No. 01A41559 (April 26, 2004) (finding that complainant should not have reasonably suspected the discrimination until he was informed that a new employee from outside of his protected group was transferred to the station he had requested).

Extension of the 45-day limitation period was warranted where the evidence showed that complainant was under a psychiatrist's care for depression and panic disorder for several months, and a note from complainant's physician indicated that the delay in initiating EEO contact resulted from the debilitating cognitive effects of depression. Greco v. USPS, EEOC Appeal No. 01A31650 (March 19, 2004).

The Commission found that complainant timely contacted an EEO Counselor two weeks after his termination. The Commission rejected the agency's argument that complainant failed to timely initiate his complaint, because he failed to return a pre-complaint form within the applicable limitation period. Nunez v. USPS, EEOC Appeal No. 01A41365 (April 15, 2004).

Complainant was out of the country at the time the agency issued him a letter of termination, and timely initiated his complaint upon receiving the letter when he returned home. Feika v. USPS, EEOC Appeal No. 01A41166 (April 29, 2004).

Untimely Formal Complaint Under Section 1614.107(a)(2)

A statement from complainant's mother that the signature "that I've been shown" was not anyone from her household was not sufficient to rebut the presumption that a properly addressed letter is received at the proper address when there is a signed return receipt. Complainant did not submit her own statement claiming that she did not receive the notice, and complainant's mother did not specifically indicate that she was referring to the signed return receipt. In addition, complainant failed to offer any explanation as to why the properly addressed letter would have been received at a different address. Nazir v. USPS, EEOC Appeal No. 01A40328 (February 25, 2004), request for reconsideration denied, EEOC Request No. 05A40614 (April 14, 2004).

Complainant did not present adequate justification to warrant an extension of the time limit for filing a complaint. Although she stated that her representative was denied official time to confer with her, she failed to produce evidence to support such a finding. In addition, complainant did not claim that she requested an extension of time to file her complaint. Thai v. USPS, EEOC Appeal No. 01A40748 (February 19, 2004).

The Commission rejected complainant's assertion that she did not file a formal complaint because she understood that the EEO Counselor was transferring her case to the formal stage. The Commission noted that complainant was twice notified about the need to separately file a formal complaint, as well as the 15-day limitation for doing so, and should have realized that she could not file a formal complaint simply by asking the EEO Counselor to forward her case to the formal stage. In addition, there was no evidence that the EEO Counselor misled complainant into believing that she would file the complaint on complainant's behalf. Allen v. Department of Veterans Affairs, EEOC Appeal No. 01A33203 (February 25, 2004).

Complainant's statement that he experienced personal hardships was insufficient to warrant an extension of the time limit for filing a complaint. Leon v. Department of Homeland Security, EEOC Appeal No. 01A34591 (March 12, 2004).

Complainant's statement that her complaint was late because she did not realize that October had 31 days did not constitute adequate justification for extending the limitation period. Harris v. USPS, EEOC Appeal No. 01A41482 (April 15, 2004).

Complainant's mental condition was insufficient to toll the applicable limitation period where the medical documentation submitted did not cover the relevant time period and included only a diagnosis of depression, with a notation that complainant's progress was fair to good. The record did not show that complainant was so incapacitated that she was unable to meet the limitation period for filing her complaint. Sharpe v. Department of Veterans Affairs, EEOC Appeal No. 01A41478 (April 15, 2004).

The Commission found that, since the record failed to disclose when complainant received the Notice of Final Interview, or an Amended Notice, there was no evidence to support a finding that complainant filed her formal complainant in an untimely manner. Lusan v. Department of Defense, EEOC Appeal No. 01A40501 (February 26, 2004).

The Commission found complainant's assertion that he mailed his complaint to the agency within the 15-day limitation period to be credible, where the record contains a certificate of mailing properly addressed to the agency's Office of Resolution Management which was dated prior to the expiration of the limitation period. Burns v. Department of Veterans Affairs, EEOC Appeal No. 01A34140 (February 10, 2004).

After receiving a notice of his right to file a formal complaint, complainant received correspondence from the agency advising him that his date of receipt was five days latter and that the original notice reflected an incorrect agency number. The Commission waived the time limit, finding that the original notice was procedurally defective because it contained an incorrect complaint number, and that the second correspondence served to mislead complainant as to the date from which he should calculate the 15-day limitation period. French v. USPS, EEOC Appeal No. 01A41483 (April 15, 2004).

Matters Not Raised with the EEO Counselor Under Section 1614.107(a)(2)

Complainant contacted an EEO Counselor after receiving a memorandum stating that he did not meet the medical standards for an agency police officer position. The Commission found that issues raised in his formal complaint concerning a demotion and failure to reinstate were related to the issue on which complainant received counseling. Specifically, after he received the memorandum, complainant was reassigned to a different section and not returned to a police officer position. Thus, the matters were like or related to the issue for which complainant received counseling. Berkebile v. Department of Veterans Affairs, EEOC Appeal No. 01A31271 (February 25, 2004).

Complaint that is the Basis of a Civil Action Under Section 1614.107(a)(3)

The agency improperly dismissed the complaint, which differed from the civil action filed by complainant. While the civil action stemmed from incidents referred to in the EEO complaint, the civil action did not cite any of the discrimination statutes enforced by the Commission. In addition, complainant mentioned her prior EEO complaint and noted that she has since been subject to retaliation; however, the civil action was not filed pursuant to Title VII. Dounis v. Department of Veterans Affairs, EEOC Appeal No. 01A34944 (April 26, 2004).

Matters Raised in a Grievance Procedure Under Section 1614.107(a)(4)

Complainant raised the same matter in a prior grievance, and the record showed that, under the agency's union agreement, employees have the right to pursue issues of discrimination under either the statutory EEO procedure or the negotiated grievance procedure. The complaint was properly dismissed. The Commission rejected complainant's argument that she did not raise an issue of discrimination in her grievance, stating that as long as the negotiated grievance procedure permits allegations of discrimination, a complainant need not actually raise a claim of discrimination in a grievance in order to elect to pursue a claim in the union forum. Zalewski v. Department of the Treasury, EEOC Appeal No. 01A34082 (February 19, 2004).

Moot Under Section 1614.107(a)(5)

The Commission found that complainant voluntarily retired from the agency, and did not raise the issue of compensatory damages, and, as such, his complaint was properly dismissed as being moot. Silverman v. Department of Homeland Security, EEOC Appeal No. 01A33571 (February 18, 2004).

Complainant, an employee of the U.S. Postal Service, filed a prior grievance regarding the same matter raised in his EEO complaint. The grievance was granted following arbitration, and the letter of warning was rescinded. Thus, interim events eradicated the effects of the alleged discriminatory incident, which was not expected to recur. Ginete v. USPS, EEOC Appeal No. 01A40922 (April 14, 2004).

The dismissal of the complaint was improper because the agency did not consider the issue of compensatory damages raised by complainant. Miller v. Department of the Navy, EEOC Appeal No. 01A30879 (February 23, 2004); Lucas v. Department of Homeland Security, EEOC Appeal No. 01A40264 (March 3, 2004); Cogen v. USPS, EEOC Appeal No. 01A34530 (March 31, 2004) (additionally, the agency failed to offer any evidence that the suspension was expunged from complainant's file, or that she was paid for leave taken).

Alleges a Proposal to Take Action Under Section 1614.107(a)(5)

Issue regarding a performance review concerns a preliminary step to taking a personnel action, and is properly dismissed. Kendrix v. Department of the Treasury, EEOC Appeal No. 01A40581 (February 10, 2004) (complainant's concerns regarding opportunities for awards and a transfer were speculative); White v. Department of Justice, EEOC Appeal No. 01A35308 (April 22, 2004).

Complaint concerning notification that the complainant would have to move to a different location constituted a preliminary action, as the agency had no information when the move would occur and, at the time of complainant's appeal, there was no evidence showing that complainant had been reassigned to any other facility. Caruso v. Department of Agriculture, EEOC Appeal No. 01A40549 (March 17, 2004).

Complainant received a Notice proposing to separate him for having excessive approved absences, and subsequently decided to take disability retirement. The Commission found that complainant was raising a claim of constructive discharge which negated the dismissal of the complaint as a proposed action. Kennedy v. Department of the Navy, EEOC Appeal No. 01A30848 (March 19, 2004).

When Complainant Cannot Be Located Under 1614.107(a)(6)

Dismissal of a complaint for failure to locate was improper where the evidence showed that the agency made only one attempt, via mail, to contact complainant, and did not attempt to contact the representative listed on the complaint form. Albright v. USPS, EEOC Appeal No. 01A32604 (March 31, 2004).

Failure to Prosecute Under 1614.107(a)(7)

Although the agency asserted that it sent complainant three requests to complete an affidavit, the record failed to show that complainant ever received the requests. In addition, complainant's formal complaint and the EEO Counselor's report contained sufficient information to process the complaint, including detailed information regarding the discrimination claim. Pajkowski v. USPS, EEOC Appeal No. 01A41024 (March 9, 2004).

The agency's dismissal of a complaint was improper where the record showed that complainant did respond to the agency's request for clarification of the issues raised, and the response, together with the information in the formal complaint, contained sufficient information for the agency to further adjudicate the complaint. Gee v. USPS, EEOC Appeal No. 01A34484 (March 31, 2004).

Alleges Dissatisfaction with Complaint Processing Under 1614.107(a)(8)

Complaint alleging dissatisfaction with an agency's final decision in a prior complaint was properly dismissed. Heiser v. USPS, EEOC Appeal No. 01A40320 (February 25, 2004).

Complaint alleging that a previous complaint was processed in an untimely manner clearly involved complainant's dissatisfaction with the processing of the prior complaint and was properly dismissed. Vaughn-Walker v. Department of Veterans Affairs, EEOC Appeal No. 01A30923 (April 26, 2004).

Misuse of the EEO Process Under 1614.107(a)(9)

The Commission found the dismissal of a complaint for misuse of the EEO process to be improper. Although complainant filed over 40 complaints involving various non-selections, the denial of training opportunities, and performance ratings, the Commission did not find the amount of cases filed to be extraordinary, and noted that the record did not show a clear intent to utilize the EEO process for ends other than that which it was designed to accomplish. Wiatr v. Department of Defense, EEOC Appeal No. 01A30752 (February 25, 2004).

Direct Threat as an Affirmative Defense in Disability Cases

by Aina Watkins

The Commission's regulations provide that agencies may defend allegations of disability discrimination by using the "direct threat" qualification standard when a qualified person with a disability poses a significant risk of substantial harm to the health or safety of themselves or others that cannot be eliminated or reduced by reasonable accommodation.⁽¹⁾ The Commission provides guidance to determine if an individual poses a direct threat to himself or others. EEOC Regulation 29 C.F.R. .1630.2 (r) states that a direct threat shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. The assessment should be based on a reasonable medical judgement that relies on the most current medical knowledge and/or on the best available objective evidence. The Commission also provides factors to consider in determining whether an individual would pose a direct threat. The factors include: (1) duration of the risk; (2) nature and severity of the potential harm; (3) likelihood that the potential harm will occur; and (4) imminence of the potential harm.

Findings of Direct Threat to Self and Others

In Chevron USA Inc. v. Echazabal,⁽²⁾ the employer refused to hire an applicant at its oil refinery because the toxins at the facility exacerbated his liver condition (Hepatitis C) which posed a direct threat to himself. The applicant argued that the Americans with Disabilities Act defense provision only applies to threats to others and not to the worker himself. The Supreme Court found no merit to the applicant's argument and held that the EEOC made it clear through its regulations that a threat-to-self defense by the employer is permissible.

In Lavery v. Department of Veterans Affairs,⁽³⁾ the complainant alleged that he was discriminated against on the basis of disability (heart problem) when he was removed due to his failure to provide a medical clearance that he was fit to work. While complainant was on a temporary appointment, he became ill and asked his supervisor to be placed in a sick leave status while he went to the hospital. The complainant was treated and admitted, but discharged himself and returned to work. His supervisor advised him that he must provide a medical release to continue working. When he returned to the hospital they readmitted him and requested that he have a medical procedure. The complainant decided against the medical procedure and again tried to return to work. Thereafter, his supervisor terminated him for failure to provide medical documentation establishing that it was safe for him to return to work. At the time, the agency was not aware of complainant's heart problem and complainant did not ask for a reasonable accommodation. Subsequently, the agency conducted an individualized assessment and found that complainant was in imminent danger of having a severe coronary event. The Commission held that an individualized assessment showed that returning the complainant to work posed a direct threat to complainant, and concluded that the agency had not violated the Rehabilitation Act when he was terminated.

In Knill v. Department of Veterans Affairs,⁽⁴⁾ complainant alleged that he was discriminated against on the basis of disability (mild retardation, learning disabilities, and auditory processing problems) when he was terminated from his job. The Commission found that complainant was a threat to himself and others and stated that "the agency's termination of complainant was not based on generalized fears about his ability to perform the essential functions of his job but on its individualized assessment of complainant's unpredictable unwillingness to obey his supervisors and his brandishing a weapon." Besides brandishing a weapon, he tried to scare his supervisor by driving his car approximately two feet behind his supervisor's car, backing up, and pulling forward three or four times. Moreover, at work complainant would become agitated and frustrated and begin to yell. His colleagues and supervisors could not calm him down and he was unresponsive to their admonishments. Eventually, complainant was placed on leave without pay status and asked to undergo a fitness for duty examination. The agency allowed complainant to choose a psychiatrist and supplied one of its own to determine if he should return to work. After both psychiatric evaluations complainant was not allowed to return to work. Thus, the Commission found that the agency met its burden by presenting objective evidence of a direct threat.

Failure to Conduct an Individualized Assessment

In Spencer v. Department of Treasury,⁽⁵⁾ the Commission found that the agency did not individually assess complainant's disability (monocular vision) to determine if he posed a direct threat to himself or others when he applied for a position. Complainant was conditionally offered the position pending a medical examination. The agency rescinded the offer because he did not meet the distance or depth perception vision requirements and was unable to see a full vision field. However, the Commission concluded that the agency did not present any "evidence to show how complainant's apparent disability and compensations were assessed against the job tasks, nor even that complainant was notified that his lack of a full visual field and [depth perception] were disqualifiers." The agency was ordered to offer complainant the position, with back pay and compensatory damages.

In Forde v. United States Postal Service,⁽⁶⁾ the complainant alleged that the agency discriminated against her on the bases of disability (valvular disease) and reprisal for prior EEO activity when she was told that she could not bid for a position. The agency argued that the complainant could not safely perform the duties of the position based on vague references to individuals in the past that developed carpal tunnel syndrome. There was nothing in the record to indicate that the agency made an individualized assessment showing that keying 6-8 hours a day would pose a direct threat to complainant. Thus, the Commission found that the agency failed to establish that allowing complainant to bid for the position would pose a direct threat.

The Commission, in Selix v. United States Postal Service,⁽⁷⁾ found that the agency violated the Rehabilitation Act by not hiring the complainant when it failed to establish that the complainant presented a direct threat of future injury to herself if she worked above her shoulders. The complainant alleged discrimination on the basis of disability (thoracic outlet syndrome and tendinitis of the right elbow) when she was denied reinstatement. She was denied reinstatement because the agency's Medical Officer found the complainant to be a moderate medical risk, and it was agency policy not to make accommodations for individuals found to be a moderate to high medical risk. As a result, the agency found complainant to be medically disqualified for reinstatement. The Commission stated that the agency's determination was based on a subjective evaluation and an insufficient individualized assessment, and that it had not shown that complainant would be a direct threat to herself or others if reinstated. The Commission ordered the agency to offer the complainant the position with back pay.

In Perez v. United States Postal Service,⁽⁸⁾ the Commission affirmed in part the AJ's decision finding that the agency's denial of employment to complainant violated the Rehabilitation Act when it considered the speculative assessments of two physicians concerning the nature and severity of the harm complainant would sustain to his knee if he was allowed to work for the agency. Initially, complainant was selected for a letter carrier position contingent on the results of a medical examination. After a medical examination the agency's medical director referred complainant to an orthopaedic surgeon to assess complaint's pre-existing knee condition. The orthopaedic surgeon diagnosed complainant with "post-operative status right ACL reconstruction with residual instability." The surgeon stated that complainant was not a good candidate for the letter carrier job because the functions of the position would eventually aggravate his pre-existing condition. The agency's medical director reached a similar conclusion. Thus, the agency contacted complainant and informed him that he was medically unsuitable for employment. The Administrative Judge found that while both the area medical director and the orthopaedist agreed that it was likely complainant would re-injure his knee, neither physician predicted, with any degree of certainty, when the re-injury was likely to occur or how severe the resulting harm would be. The AJ further found that both physicians agreed that the re-injury was not expected to occur within the first six months. The AJ also found that although the area medical director testified that complainant's knee problems might include steady degeneration of the joint and that the chances of successful surgery decrease with each subsequent surgery, the area medical doctor rated complainant as a low risk/restriction. Both the AJ and the Commission on appeal found that this assessment was far too speculative concerning the nature and severity the harm complainant would sustain, and too remote as to when complainant would be expected to sustain such a harm, to sustain the agency's burden of proof that complainant was a direct threat. The Commission ordered the agency to offer complainant the position, with back pay, and to award complainant $20,000 in proven compensatory damages.

---

Footnotes

1. 29 C.F.R. §1630.15(b)(2); 29 C.F.R. §1630.2(r).

2. 536 U.S. 73 (2002).

3. EEOC Appeal No. 01A14788 (February 26, 2003).

4. EEOC Appeal No. 01984220 (May 31, 2001).

5. EEOC Appeal No. 07A10035 (May 6, 2003).

6. EEOC Appeal No. 01A12670 (October 9, 2003), request for reconsideration denied, Request No. 05A40196 (February 5, 2004).

7. EEOC Appeal No. 01970153 ( March 16, 2000).

8. EEOC Appeal No. 07A20117 (July 23, 2003).