The DIGEST Of Equal Employment Opportunity Law

Volume XIII, No. 3

Office of Federal Operations

Summer Quarter 2002

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Inside

Selected EEOC Decisions on:

Articles

REMEDIES: BACK PAY - A PRIMER

FINAL RULE APPLYING ADA STANDARD TO FEDERAL WORKFORCE

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SELECTED EEOC DECISIONS

Abuse of Process

No Abuse Found. The Commission did not find complainant's numerous complaints to be an abuse of the equal employment opportunity (EEO) process. Despite a high number of complaints filed (47), the Commission noted that merely filing a large number of complaints is not sufficient for finding abuse of process. It found no clear intent by complainant to use the EEO process for ends other than which it was designed to accomplish, and concluded that complainant had not engaged in abuse of process. Deutsch v. United States Postal Service, EEOC Appeal No. 01A02671 (February 27, 2002).

Age Discrimination

Direct Evidence. Complainant was discriminated against on the basis of age, in violation of the Age Discrimination in Employment (ADEA), when he was transferred to a new job location because he was considered to be a "dinosaur." The Commission also found that the agency failed to meet its burden of showing that it would have transferred complainant even absent discrimination. Harrison v. Department of Justice, EEOC Appeal No. 01984868 (November 23, 2001).

Class Complaints

Class Action Not Certified. Complainant's class complaint was rejected for failure to satisfy the prerequisites for certification. However, the individual complaints of the class members could be processed and possibly joined. Fusilier, et al. v. Department of the Treasury. EEOC Appeal No. 01A14312 (February 22, 2002).

Compensatory Damages

Awards for Non-Pecuniary Damages. In a series of decisions, the Commission ruled as follows:

• Increased an agency's award for retaliation from $3,000 to $15,000 (Jones v. Department of Commerce, EEOCAppeal No. 01A13671 (May 2, 2002));
• Affirmed an EEOC Administrative Judge's (AJ's) award of $20,000, which the agency had reduced to $5,000, for race and sex discrimination (Nassif v. Department of Transportation, EEOC Appeal No. 07A10014 (March 22, 2002));
• Reversed an agency's denial of damages and awarded $33,000 in a disability case (Cornell v. Department of Veterans Affairs, EEOC Appeal Nos. 01995329 and 01995655 (May 30, 2002)).

Disability Law - Association Provision

Association With Disabled Person. It is unlawful to discriminate against a person based on their close association with an individual with a known disability. The agency's obligation to provide reasonable accommodation, however, applies only to qualified individuals with disabilities. The Commission found no discrimination in the agency's denial of complainant's request for additional leave under the Family Medical Leave Act (FMLA), and its termination of complainant with regard to the care of her daughter who had cerebral palsy. Simms v. Department of the Navy, EEOC Appeal No. 01992195 (May 16, 2002).

Disability Law - Attendance

No Nexus Between Impairment and Leave Denial. Affirming the agency's Final Order declining to fully implement the AJ's finding of disability discrimination (migraine headaches), EEOC noted that complainant had failed to show a nexus between her impairment and denial of leave.

Ricco v. United States Postal Service, EEOC Appeal No. 07A10007 (February 15, 2002).

Disability Law - Definitions

Complainant Not Disabled. Complainant's impairment (sinusitis/bilateral CT/contact dermatitis) neither substantially limited the major life activity of breathing nor was long-term or chronic. Washington v. United States Postal Service, EEOC Appeal No. 01993946 (February 22, 2002). Cf. Brown v. United States Postal Service, EEOC Appeal No. 01996312 (March 1, 2002) (condition not temporary merely because it can be corrected by surgery).

Disability Law - Direct Threat

No Evidence of Direct Threat. The agency refused to hire complainant, asserting that performing the job would constitute a threat to her health due to her disabilities. EEOC found no evidence that complainant posed a direct threat and was unsuitable for employment because of her impairments (hearing, underdeveloped fingers, and metal strip in foot). Accordingly, the Commission found a violation of the Rehabilitation Act. Plambeck v. United States Postal Service, EEOC Appeal No. 01981021 (January 2, 2002).

Disability Law - Discipline

Suspension Did not Violate the Rehabilitation Act. The Commission held that the duty to accommodate does not require an employer to excuse past employee misconduct, so long as nondisabled employees are similarly disciplined.Contreras v. Social Security Administration, EEOC Appeal No. 01A10514 (February 22, 2002).

Disparate Impact

No Prima Facie Case. Complainant failed to establish a prima facie case when he produced no evidence that the challenged practice had a disparate impact on Haitians. Obas v. Department of Justice, EEOC Appeal No. 01A04389 (May 16, 2002).

Failure to State a Claim/Mootness

Polygraph Test not Actionable. A complaint involving a polygraph test did not state a claim, absent a resulting adverse action. Jones v. Department of the Army. EEOC Request No. 05A00428 (March 1, 2002).

Death of Complainant Does Not Vitiate Complaint. A deceased complainant's estate's complaint was viable and not moot, where complainant had initiated EEO counseling and the agency had issued a Notice of Final Interview. Complainant's widow and executrix requested, in effect, compensatory damages for his suffering while alive. Estate of Ginter, Sr., v. United States Postal Service, EEOC Appeal No. 01997239 (July 11, 2001).

Harassment/Hostile Work Environment

Agencies Must Be Sensitive to Workplace Harassment. Finding that complainant failed to establish a prima facie case of harassment, noting the acts claimed were sporadic and not severe, EEOC encouraged the agency to ensure that its employees were aware of the Commission's policy regarding harassment. Obas v. Department of Justice, EEOC Appeal No. 01A04389 (May 14, 2002).

Hearings

AJ Remand Was Error. The AJ erred in remanding the complaint to the agency for a supplemental investigation after complainant sought to amend the complaint by adding bases. The AJ should have presided over any necessary supplementation of the record in the hearing process. Simmons v. United States Postal Service, EEOC Appeal No. 01A21416 (April 9, 2002).

National Origin and Religious Discrimination

Discrimination Found. Complainant was discriminated against, based on national origin (Arab/Egyptian), and religion (Muslim), when he was not selected for two agency positions. The Commission also awarded complainant $75,000 in non-pecuniary damages and reimbursement for proven medical expense. Ghazzawi v. United States Postal Service EEOC Appeal No. 01A15327 (April 23, 2002).

Pretext

Pretext Found. The Commission found that the agency's reason for not promoting complainant during his detail as a Garbage Truck Driver (a delay in paperwork and a lack of agency funds), was unworthy of belief. The agency official in charge of processing the paperwork averred that he was processing the necessary paperwork and that complainant could be paid at the higher rate. However, the agency was unable to prove that it even began processing the paperwork. Further, complainant's immediate supervisors obstructed his being paid at the higher rate. The Commission found, accordingly, that the agency discriminated against complainant based on race, color, and retaliation. Ford v. Department of the Army, EEOC Request No. 05980506 (December 6, 2001).

Settlement Agreements

Consideration. EEOC found that a settlement agreement was void for lack of consideration. An agreement is void where one party receives no benefit and the other suffers no legal detriment. In this case, a hiring freeze in place during the relevant time period effectively made it impossible for complainant to receive the priority consideration for the position for which she had bargained. Lee v. Department of the Army, EEOC Appeal No. 01A20577 (April 25, 2002).

Enforceability. Complainant, a GS-12 employee raised a claim of hostile work environment, under Title VII and the Rehabilitation Act. The parties entered into a settlement agreement which provided for the agency to recalculate complainant's disability retirement at the GS-14, step 10 level. However, subsequent to the execution of the agreement, the Office of Personnel Management (OPM), as administrator of the Civil Service Retirement System (CSRS), advised the agency that it would not implement the provision because, inter alia, it appeared that the agreement had been drafted solely to provide complainant with an annuity in excess of that to which he was entitled. Complainant claimed breach of the agreement. The Commission found the provision to be unenforceable. It noted that the monetary relief available for hostile environment harassment under Title VII and the Rehabilitation Act was an award of compensatory damages, instead of a promotion for which complainant never claimed he had applied or been denied. The Commission urged the parties to renegotiate the agreement, ratify it in the absence of the provision at issue, or continue with the processing of complainant's underlying complaints. Freeman v. Department of the Army, EEOC Request No. 05990031 (July 13, 2001).

Remedies: Back Pay - A Primer

This article, in Question and Answer format, has been designed to help the reader understand the equitable remedy of Back Pay, under the statutes enforced by the Commission.

1. When the Commission orders an award of Back Pay, what does it mean?

Back Pay is an equitable remedy that includes monetary benefits and all forms of compensation, reflecting fluctuations in working time, overtime, rates, penalty overtime, Sunday premium and night work, changing rates of pay, transfers, promotions, and privileges of employment. See Cass v. Department of Veterans Affairs, EEOC Petition No. 04A10014 (March 14, 2002).

2. What is meant by an equitable remedy?

An equitable remedy is "make whole relief" designed to restore the complainant as much as possible to the position he/she would have been in absent discrimination. See Finlay v. United States Postal Service, EEOC Appeal No. 01942985 (April 29, 1997) (citing Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975)).The burden of limiting the remedy rests on the agency. Finlay supra.

3. Where does the Commission get its authority to award back pay?

EEOC's authority to award back pay is derived from the remedial provisions of Title VII of the Civil Rights Act of 1964, as amended, and, by analogy, the Rehabilitation Act of 1973, as amended. See Ferguson v. United States Postal Service, EEOC Request No. 05880848 (May 8, 1990).

4. How is back pay computed?

Back pay is computed under the regulations of the Office of Personnel Management (OPM), set forth at 5 C.F.R. 550.805; and cited in the EEOC's regulations in Subpart E of 29 C.F.R. Part 1614 "Remedies and Enforcement" (revised November 9, 1999). See 29 C.F.R. Section 1614.501 "Remedies and Relief." See also the Commission's Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110, as revised November 9, 1999), at Ch. 9, Section VIII ("Remedies").

5. May back pay be awarded under all the statutes enforced by the Commission?

Yes. Back pay can be awarded under Title VII, the Age Discrimination in Employment Act (ADEA), the Rehabilitation Act, and the Equal Pay Act (EPA). See the Commission's Enforcement Guidance on After-Acquired evidence and McKennon v. Nashville Banner Publishing Co, 115 S. Ct. 879 (1995), at III (A), EEOC Notice 915.002 (December 14, 1995). Prejudgment interest on back pay is not available under the ADEA. See Gross, et al. v. Department of Veterans Affairs, EEOC Petition No. 04A10034 (August 8, 2001). With regard to the EPA, a violation of the EPA is also a violation of Title VII, for which back pay with interest may be awarded. An additional award of liquidated damages may also be available in EPA cases. See the Commission's Enforcement Guidance supra, and Telford v. Department of the Army, EEOC Appeal No 01973892 (November 2, 1999), Request to Reconsider granted in part, and denied in part, EEOC Request No. 05A00233 (June 11, 2002). However, an individual may not receive duplicative relief for the same wrong. See 29 C.F.R. Section 1620.27.

6. What are liquidated damages?

Liquidated damages are an additional dollar award, generally equal to the amount of back pay. With regard to the Equal Pay Act, an employer who violates the EPA may be liable for the "payment of wages lost and an additional equal amount as liquidated damages." See 29 U.S.C. Section 206(d). See also the Commission's regulations at 29 C.F.R. Section 1620.33. And see Telford v. Department of the Army supra. Liquidated damages are also available under the ADEA, but not in the federal sector. See, e.g., Smith v. Office of Personnel Management, 778 F.2d 258, 263-64 (5^th Cir. 1985) (court refused to award liquidated damages against the federal government because Congress did not expressly provide for it), cert. denied, 476 U.S. 1105 (1986); Duffy v. Halter, 2001 WL 253828, *7 (E.D. Pa. 2001) ("liquidated damages are not available in an ADEA action against the federal government").

7. Are there any limitations on back pay awards?

Yes. Back pay generally ends on the date the agency's offer of reemployment becomes effective, or on the date the offer is rejected. See McNeil v. United States Postal Service, EEOC Petition 04990007 (December 9, 1999). In addition, an award of back pay is limited to two years prior to the date on which the complaint was originally filed, in accordance with Title VII. See Stone v. Department of the Treasury (Bureau of Public Debt), EEOC Request No. 05A11013 (January 10, 2002). See also 29 C.F.R. Section 1614.501 with regard to the two-year limitation under the Rehabilitation Act. Back pay may also be limited by the concept of mitigation of damages, discussed below.

8. What does it mean to mitigate damages?

A complainant has an obligation to mitigate, or limit, potential damages. The complainant must be "ready, willing, and able" to work during the applicable time period. See Paris v. United States Postal Service, EEOC Request No. 05921068 (December 7, 1992); 5 C.F.R. 550.805. Otherwise, complainant is not entitled to back pay for the period he was not ready, willing and able to work. See Schnaidt v. Department of Veterans Affairs, EEOC Petition No. 04960022 (November 15, 1996). The agency has the burden to show that complainant failed to mitigate damages. See Simmons v. United States Postal Service, EEOC Petition 04930005 (December 10, 1993); and EEOC regulations set forth at 29 C.F.R. § 1614.501(d).

9. How can it be shown that complainant failed to mitigate damages?

Generally a two-prong test is employed: An agency must show that: (1) complainant failed to use reasonable care and diligence in seeking a suitable position, and (2) there were suitable positions available which complainant could have discovered and for which he/she was qualified. See Simmons v. United States Postal Service supra.

10. Is back pay subject to deductions?

Yes. OPM's regulations require that offsets and deductions from the gross back pay award be made in a specified order, beginning with the earnings from the job from which the employee was unjustifiably separated. 5 C.F.R. Section 550.805 (e).

11. Can workers' compensation awards affect back pay?

Yes. Under the Federal Employees Compensation Act (FECA), compensation from the Office of Workers' Compensation Programs (OWCP) is deductible from back pay if it is in the form of a wage-replacement benefit. This is to avoid double wage recovery. However, the portion of the OWCP award that is paid as reparation for physical injuries is not subject to deduction because such compensation is not related to wages earned. See Sands v. Department of Defense, EEOC Petition No. 04990001 (February 25, 2000).

12. What if there is a dispute between complainant and the agency over the amount of back pay?

A complainant who feels that he or she has not been awarded the correct amount of back pay may petition the Commission for clarification or enforcement of a decision issued under the Commission's appellate jurisdiction. 29 C.F.R. § 1614.503(a).

13. May a complainant receive back pay as part of a settlement agreement, even without an agency admission of discrimination?

Yes. See Barrington v. Department of Transportation (FAA), EEOC Appeal No. 01990183 (May 21, 2002); see also EEO MD-110, Chapter 12 "Settlement Authority."

Final Rule Issued on Application of ADA Standards to Federal Workforce

In 1992, Congress amended the Rehabilitation Act of 1973, incorporating the employment provisions of the Americans with Disabilities Act of 1990 (ADA) into the Rehabilitation Act, in order to promote consistent application of the two laws.⁽¹⁾ The EEOC has now published a final rule clarifying the application of the employment provisions of the ADA to federal government workers.⁽²⁾ The rule incorporates by reference the EEOC's ADA regulations, found at 29 C.F.R. Part 1630, into the federal sector EEO complaint processing regulations, found at 29 C.F.R. Part 1614.

Among the most significant changes resulting from this final rule is the deletion of the regulatory limits on reassignment of federal employees with disabilities as a reasonable accommodation, formerly found at 29 C.F.R. Section 1614.203(g). For example, under the prior regulation, reassignment was not an available accommodation for a probationary employee. Under the revised regulations reassignment is a possible accommodation so long as the employee adequately performed the essential functions of the position, with or without accommodation, before the need for reassignment arose, regardless of the probationary status of the employee. The Commission points out in the preamble to the new rule, however, that if a probationary employee has never adequately performed the essential functions of the position, s/he is not entitled to reassignment because s/he was never "qualified" for the original position.

The new rule also eliminates the limitation in 29 C.F.R. Section 1614.203(g) of the scope of the search for reassignment to the local commuting area. Under the new rule, the scope of the search may be agency-wide, which could extend beyond the local commuting area. The Commission points out in the preamble to the new rule, however, that the duty to consider reassignment, like any other reasonable accommodation, is limited by a showing of "undue hardship." Undue hardship takes into account the operational, financial and legal relationships between components of large organizations. As such, an employer seeking to demonstrate undue hardship would have to demonstrate why, in light of the resources, operations, and constraints of its particular organization, the reasonable accommodation of reassignment would result in significant difficulty or expense.

The Commission pointed out that the Supreme Court has held that "ordinarily" it will be unreasonable to reassign an employee with a disability as an accommodation if doing so would violate the rules of a seniority system. U.S. Airways, Inc. v. Barnett, 122 S. Ct. 1516 (2002). This is true for both collectively bargained seniority systems and those unilaterally imposed by management. However, if there are "special circumstances" that undermine employee expectations of consistent, uniform treatment, it may be a reasonable accommodation, absent undue hardship, to reassign an employee despite the seniority system.

In applying this rule, practitioners should be aware that the effective date of the change is June 20, 2002. This means that the new regulations apply to conduct occurring on or after that date. For example, in Hampton v. U.S. Postal Service,⁽³⁾ the complainant alleged that the agency failed to reasonably accommodate her disability (Reflex Sympathetic Dystrophy) when she was not offered reassignment to a light duty position. In examining reassignment as a means of reasonable accommodation, the Commission noted that the regulations found at 29 C.F.R. Section 1614.203(g) which governed and limited the obligation of reassignment, had been superseded and no longer applied. However, because the case arose prior to June 20, 2002, the effective date of the change in the regulations, the Commission applied 29 C.F.R. Section 1614.203(g). It noted that the complainant had the burden in a reassignment case of showing, by a preponderance of the evidence, that there were vacancies during the relevant time period into which s/he could have been reassigned. The complainant could do this, the Commission explained, by producing evidence of particular vacancies. Absent this type of evidence, the Commission continued, the complainant could meet his/her burden by showing: (1) s/he was qualified to perform a job or jobs which existed at the agency; and (2) that there were trends or patterns of turnover in the relevant jobs so as to make a vacancy likely during the relevant time period. In this case, the Commission found that the complainant had failed to meet her burden. The agency had shown that there were no positions available for reassignment in the complainant's Carrier craft, and the complainant had failed to argue or show that there were vacancies outside her craft available for reassignment. The Commission concluded that the complainant was not a qualified individual with a disability, as she had not shown that the agency would have found a vacant position to which she could have been reassigned. Accordingly, the Commission found that the complainant had failed to show that she had been denied a reasonable accommodation.⁽⁴⁾

1. Rehabilitation Act Amendments of 1992, Pub. L. 102-569, 106 Stat. 4344 (1992) (codified as amended at 29 U.S.C. Section 791(g)).

2. 67 Fed. Reg. 35732 (May 21, 2002), to be codified at 29 C.F.R. Section 1614.203. The text of the final rule can be found at EEOC's web site, www.eeoc.gov.

3. EEOC Appeal No. 01986308 (July 31, 2002).

4. For other recent cases applying the reassignment provisions of 1614.203(g) to cases arising before June 20, 2002, see: Key v. U.S. Postal Service, EEOC Appeal No. 07A20001 (August 2, 2002); Barnard v. U.S. Postal Service, EEOC Appeal No. 07A10002 (August 2, 2002).