Digest of EEO Law Vol X11 No. 1 - Selected Commission Decisions

SELECTED COMMISSION DECISIONS

Fragmentation of Claims
Abuse of Process
Derogatory Statements About Prior EEO Activity
Failure to Accommodate
Remedies
Settlement Agreements
Abandoned Allegations
Failure to state a claim
Timeliness
Election

Fragmentation of claims

2 claims, 21 allegations. The Commission noted that appellant raised two claims concerning the terms and conditions of her employment failure to accommodate, and failure to promote. The agency had characterized the claims as 21 separate allegations. The Commission stated that the agency should not have ignored the pattern aspect of the allegations, and should not have defined the issues in a piecemeal manner. Ferguson v. Department of Justice, EEOC Request No. 05970792 (March 30, 1999).

The Commission characterized appellant's complaint as one of harassment based on sex, thereby precluding the dismissal of the individual allegations for failure to state a claim. Hofmann v. Department of the Navy, EEOC Request No. 05970962 (October 28, 1999).

Abuse of process

The Commission found that appellant was pursuing a scheme involving the misuse and misapplication of the EEO process. He failed to cooperate with investigators, EEO officials, and the EEOC Administrative Judge. The Commission noted his continuous overburdening of OFO resources, for example by filing 21 separate appeals with almost identical appeal briefs. Fisher v. Department of Defense, EEOC Request No. 05970326 (December 11, 1998).

Decision on the merits. Derogatory statements about prior EEO activity were made in an agency's comments on an OWCP claim. An EEOC Administrative Judge found that the statements were direct evidence of retaliation, noting that such evidence "proves by itself what a respondent's motivation was in taking an adverse employment action." The Commission on appeal upheld the AJ's finding of reprisal. Mares v. Department of the Army EEOC Appeal No. 01960499 (January 28, 1998), RTR denied EEOC Request No. 05980418 (March 18, 1999).

Decision on the merits: Failure to accommodate. Despite physician's recommendation that appellant should not use a hand stamp repeatedly, the agency offered only hand stamping duty to appellant as a reasonable accommodation. When appellant rejected that assignment, the agency placed him in leave without pay status and ultimately removed him. The Commission concluded that the agency did not make a good faith effort to assess appellant's job skills, his medical restrictions, the work environment, and agency resources in order to determine whether it could make a reasonable accommodation of his disability. Although the agency asserted that the cause for appellant's removal was his attendance problems, it was the agency's failure to locate another assignment that resulted in his absence from work. Samuel v. United States Postal Service, EEOC Appeal No. 01985021 (July 16, 1999)

Remedies

Constructive downgrade. Appellant was the victim of retaliation, and as a result took a voluntary downgrade. To be reinstated as part of his remedy, appellant had to demonstrate that he was constructively downgraded. Because he did not make this showing, the Commission ruled that appellant was not entitled to reinstatement into his former position. Youngblood v. United States Postal Service, EEOC Request No. 05970830 (June 17, 1999).

Mitigation. Agency failed to meet its burden of showing that complainant did not mitigate her losses, either by accepting the agency's earlier offer of employment (which had failed to include a reasonable accommodation to complainant's disability), or by obtaining other employment. McNeil v. United States Postal Service, EEOC Petition No. 05990007 (December 9, 1999).

Attorney's fees. Appellant was not due attorney's fees because the finding of discrimination was based solely on a violation of the ADEA, which does not provide for attorney's fees in the administrative process. Bell v. Department of Veterans Affairs, EEOC Petition for Enforcement No. 04990022 (October 22, 1999).

Compensatory damages. Appellant was the victim of sexual harassment hostile environment discrimination and retaliation. She was unable to return to work after the discrimination. For loss of future earning capacity, the Commission awarded appellant $152,034. Brinkley v. United States Postal Service, EEOC Request No. 05980429 (August 12, 1999).

Compensatory damages. The Commission found race discrimination, racial harassment, hostile environment discrimination, and retaliation. Appellant was awarded a total of $130,000 in compensatory damages. This amount included $80,000 in nonpecuniary damages for the substantial worsening of appellant's pre-existing condition. Cook v. United States Postal Service, EEOC Appeal No. 01950027(July 17, 1998), RTR denied EEOC Request No. 05981041 (August 5, 1999).

Settlement Agreements

OWBPA. The settlement agreement did not comply with the requirements of the Older Workers Benefit Protection Act of 1990, 29 U.S.C. 626(f) because it did not specifically refer to appellant's age claim, the agency did not advise appellant in writing to consult with an attorney prior to signing the agreement, and appellant was only given 24 hours to consider the agreement. Moreover, the Commission noted that appellant was emotionally distraught when she signed the agreement. The Commission concluded that the settlement agreement was invalid. Woychik-Brown v. Department of Agriculture, EEOC Request No. 05960768 (July 16, 1999).

No breach. Settlement agreement had not been coerced. While appellant only had 24 hours to accept the terms of the agency's proposal, the Commission considered for example that appellant was a seasoned participant in the EEO process, and that agency officials encouraged him to consider the settlement agreement and discuss it with others. Brown v. Department of Agriculture, EEOC Request No. 05960769 (July 16, 1999).

Abandoned allegations

Complainant received counseling on an allegation, but did not go forward with a formal complaint on that allegation. The Commission decided that the complainant was deemed to have abandoned the allegation, and ruled that she could not raise it in another complaint. Small v. United States Postal Service, EEOC Request No. 05980289 (July 16, 1999).

Does the complaint state a claim?

OWCP claim processing: Yes. Appellant alleged discrimination in the agency's failure to submit her injury compensation claim to the Office of Workers' Compensation Programs (OWCP). The Commission held that she stated an EEO claim, as her complaint addressed the processing, rather than the merits, of her OWCP claim. The decision discusses the distinction. Brown v. United States Postal Service, EEOC Request No. 05980128 (July 22, 1999).

Releasing confidential information: Yes. The agency allegedly released confidential medical information about appellant that it had obtained during an FBI security background check. Appellant alleged that the disclosure to her coworkers isolated her and created a hostile environment. Held: appellant stated a claim. Gaines v. Department of Veterans Affairs, EEOC Appeal No. 01974648 (February 26, 1999).

Agency employee's statement in an EEO complaint file: No. An alleged responsible management official submitted comments on the investigative file, which were made part of the record. Appellant alleged that the comments constituted retaliation. The Commission decided that the allegation failed to state a claim, citing to Commission precedent regarding statements made during the processing of an EEO complaint. Gold v. Department of the Treasury - Internal Revenue Service, EEOC Request No. 05970694 (February 26, 1999).

Multiple-allegation harassment: Yes. Six of the seven allegations in appellant's complaint were not moot, stated the Commission. Appellant had described the allegations as work environment harassment, and if he were to prevail, the Commission found, he would be entitled to certain elements of relief. Davis v. United States Postal Service, EEOC Request No. 05970759 (February 26, 1999).

Slur: No. Appellant heard second-hand that her supervisor had made a derogatory remark about her regarding her national origin. Because she did not hear the remark directly, the Commission ruled, she would have to show that she was subjected to some concrete agency action in order to state a claim. She did not present any argument or evidence of harm, and the Commission ruled that her complaint failed to state a claim. Villa v. United States Postal Service, EEOC Request No. 05970620 (February 22, 1999).

Federal prisoner not an employee: No. The prisoner performed work for the agency under an agreement between the agency and the Bureau of Prisons (BOP). The BOP was responsible for the custody and control of the prisoner, and paid her compensation. The Commission looked to the totality of the circumstances and concluded that the prisoner was not an employee for purposes of Title VII, and therefore that her complaint did not state a cognizable claim. Pettis v. Department of the Navy, EEOC Appeal No. 01964038 (March 2, 1999).

Timeliness.

Filing time extended. Four days after receiving her notice of right to file an EEO complaint from the agency, appellant received some corrected pages which revised the statement of accepted issues. Her formal complaint was filed within 15 days of her receipt of the second, but not the first, statement of issues. The Commission noted that the corrections were substantive, and decided that the time limit for filing should therefore be extended. Burdick v. United States Postal Service, EEOC Request No. 05981023 (February 19, 1999).

Timeliness after court's dismissal. A suit based on an agency's dismissal was dismissed by the court for lack of subject matter jurisdiction. On the grounds that the court dismissed the suit without prejudice, and that appellant acted promptly following the dismissal, the Commission reinstated appellant's complaint in the administrative process. James v. Department of Housing and Urban Development, EEOC Request No. 05970682 (June 17, 1999).

Election

Complainant filed a grievance regarding discipline matters but did not raise discrimination issues in his grievance. When he subsequently filed an EEO complaint on the same matters, the agency dismissed the complaint. The agency submitted proof that its negotiated grievance procedure permitted discrimination claims to be raised in either the grievance or the EEO process. The dismissal was upheld, since a complainant when electing the grievance route must raise allegations of discrimination in the grievance or forego them. Ternullo v. Department of the Navy, EEOC Request No. 05980694 (November 29, 1999).