COMMISSION HIGHLIGHTS

Digest of EEO Law, Volume XI, No. 3

I

EXCLUSION FROM INSURANCE COVERAGE IS AN IMPERMISSIBLE DISABILITY-BASED DISTINCTION

Polifko v. Office of Personnel Management (OPM), EEOC Appeal No. 01960976 (April 3, 1997), request for reconsideration denied, EEOC Request No. 05970769 (January 23, 1998).

The issues raised in this case were whether the appellant could bring a claim of disability discrimination based on his wife's disability, and whether the denial of insurance coverage involved a term, condition or privilege of employment. A federal employee's health insurance carrier denied coverage for the treatment HD/ABMT (high dose chemotherapy with autologous bone marrow transplant), which had been recommended by a physician treating the employee's wife for breast cancer. The employee filed an EEO complaint of disability discrimination. He named OPM, which administers the health insurance program for all agencies, as the agency which had discriminated against him. (He was not an employee of OPM.) Initially, the agency dismissed the complaint for failure to state a claim, on the grounds that the employee's wife, not the employee, was the aggrieved party, and she was not a federal employee. The agency also stated that coverage was denied based upon the terms of the insurance policy, not the wife's disability. The terms of the policy specifically listed breast cancer as not being covered for the type of treatment sought by the appellant's wife.

When the employee appealed the agency's dismissal to the Commission, the Commission in an earlier decision ruled that the complaint did state a claim (EEOC Request No. 05940611; January 4, 1995). The Commission noted that it is a violation of the Rehabilitation Act to deny job benefits to a qualified individual because of the known disability of an individual with whom the individual is known to have a family, business, social or other relationship or association. Moreover, the Commission pointed to a provision in EEOC's "Interim Enforcement Guidance on the Application of the ADA of 1990 to Disability-Based Distinctions in Employer-Provided Health Insurance." The cited provision states that coverage of an employee's dependents under an employer-provided health insurance plan is a benefit available to the employee. The Commission found that the denial of insurance coverage involved a term, condition or privilege of employment, and concluded that the appellant had standing to bring a claim of disability discrimination. The Commission remanded appellant's complaint to the agency for investigation. The agency was directed to determine whether the exclusion of the treatment was a disability-based distinction, and whether the exclusion was justified under standards set out in the EEOC Interim Guidance. The resulting final agency decision asserted that the exclusion was not disability-based, but rather was based on the medical suitability of the procedure to treat the specific cancer.

On appeal, the Commission ruled that the exclusion was an impermissible disability-based distinction, as the distinction in the insurance policy applied to a specific disability, and affected only persons who have that disability. The Commission also decided that the agency failed to justify the exclusion. The Commission ordered the agency to remedy the discrimination, including payment of the past pecuniary losses, to be calculated in cooperation with appellant, that resulted from the denial of coverage. The agency filed a request to reconsider this decision; the request was denied.

II

FAILURE TO MITIGATE, PAY-BASED FORMULA, DISALLOWANCE OF COSTS CONSIDERED IN COMPENSATORY DAMAGES AWARD

Young v. Social Security Administration, EEOC Appeal No. 01955120 (January 30, 1998).

An Administrative Judge recommended finding that appellant was discriminated against on the basis of perceived disability in an April 1992 nonselection, and retaliated against in an August 1992 nonselection, and also found that appellant was entitled to compensation for some but not all of appellant's claimed pecuniary and nonpecuniary losses. She found entitlement for costs. The agency in its final decision accepted the recommendations of the AJ except for the payment of $1,000 in costs. The agency excluded the cost of the psychological evaluation that appellant's psychologist conducted to prepare for testifying on appellant's behalf, on the grounds that the AJ had found that the psychologist's evaluation was of little evidentiary value. The agency's award totaled $5,125. On appeal, appellant contended that the agency's award was merely token.

Some limits on the pecuniary damages were upheld by the Commission. The Commission agreed with the AJ that appellant failed to mitigate the damages she claimed for migraines, and observed that a complainant has a duty to mitigate his or her pecuniary damages under EEOC Guidance. The Commission decided that appellant failed to mitigate her damages by failing to adhere to medical advice concerning stress reduction and a change in medication.

The Commission also limited nonpecuniary losses, but awarded a larger sum than was awarded by the agency. The Commission observed that in arriving at a portion of the nonpecuniary damages, the agency used a formula based on appellant's pay. The Commission does not adopt such a formula because the formula presumes that pain and suffering at lower pay levels are worth less. With respect to costs, the Commission restored the costs of the psychologist's evaluation. While recognizing the AJ's finding that the psychologist's testimony and opinion regarding appellant's depression was of limited probative value, the Commission pointed out that the finding was in the context of the psychologist's opinion as to whether the appellant was entitled to damages resulting from depression. Neither the credentials of the psychologist nor his expertise was ever questioned, stated the Commission. The Commission awarded a total of $7,220 in compensatory damages.

III

NOT NECESSARY TO SHOW THAT A SIMILARLY SITUATED PERSON WAS TREATED DIFFERENTLY

Saenz v. Department of the Navy, EEOC Request No. 05950927 (January 9, 1998).

The agency rated appellant as "Exceeds Fully Satisfactory" on her 1992 annual performance appraisal. She filed an EEO complaint alleging that she should have received an "Outstanding" rating, and that her given rating was prompted by national origin (Hispanic), sex, and age discrimination and reprisal. A GS-12 Personnel Management Specialist, appellant compared her treatment with a Satellite Branch Manager (Hispanic male) who worked for the agency at another facility. He was rated "Outstanding." The agency Personnel Director had rated both employees. An EEOC AJ in a recommended decision found no national origin or age discrimination but did find sex discrimination and retaliation. He found that the agency gave the comparison employee credit for work that appellant and her staff performed. In a later appellate decision, the Commission ruled those findings proper.

The agency filed a request to reconsider, arguing that appellant could not establish a prima facie case of sex discrimination because she was not similarly situated to the comparison employee, and therefore could not show that she was treated less favorably. The Commission, while recognizing the frequency with which the "similarly situated" standard is used, stated that it is not mandatory for an appellant to follow it. Rather, an appellant must present evidence which would support an inference of discrimination. The Commission found that appellant here was arguing, in essence, a case of "sex-plus" discrimination; that is, the Personnel Director treated her, an Hispanic female, less favorably than he treated non-Hispanic females and all males. Appellant and several other witnesses testified that the Personnel Director treated Hispanic women more harshly than he treated other persons under his supervision. The Commission decided that the testimony supported an inference of discrimination. The Commission went on to decide that the agency's articulated reasons for appellant's rating were a pretext for sex discrimination and reprisal. The agency was ordered to raise appellant's 1992 performance appraisal to "Outstanding," and to consider the request for compensatory damages that she had raised during the hearing before the AJ.

IV

AGENCY SANCTIONED FOR REFUSAL TO PROVIDE RELEVANT EVIDENCE

Jackman v. Department of Housing and Urban Development, EEOC Request No. 05970011 (January 16, 1998).

Although the agency had provided unsanitized Standard Form (SF) 171s during its initial investigation of appellant's EEO complaint, it produced only sanitized SF 171s during the supplemental investigation ordered by an EEOC AJ. All of the SF 171s pertained to the nonselections which appellant, in his complaint, alleged were based on age, sex, and race discrimination. After reviewing both the sanitized and the unsanitized versions of the SF 171s proffered in the supplemental investigation, the AJ ordered the agency to provide appellant with versions significantly less sanitized than the agency had previously provided. The AJ told the agency that information such as social security numbers and home addresses could be sanitized, but that age, experience, and education data in the documents were relevant and should be disclosed. The agency refused. On the day of the hearing, the AJ decided not to go forward, in part because of the agency's refusal. Ultimately, the AJ issued a recommended decision without a hearing, which sanctioned the agency by prohibiting it "from using comparative evidence of other candidates as a defense." As the agency was unable to articulate a legitimate nondiscriminatory reason for not selecting appellant, the AJ found age discrimination as to one of the nonselections. (The sanction was not relevant to two other positions because appellant did not establish his prima facie case.) The agency issued a final decision of no discrimination as to all nonselections, and appellant appealed.

The appellate decision found the sanction proper, the agency's sanitizing of age, experience, and education data improper, and noted that even absent the sanction, it would have found discrimination. The agency filed a request to reconsider, arguing that the AJ exceeded her authority and improperly imposed the sanction. The Commission determined that the AJ's sanction was proper. In addition, the Commission noted that the agency wanted the AJ to ask questions during the hearing and determine "piecemeal" whether certain applications were relevant. The Commission agreed with the AJ that appellant was entitled to the minimally sanitized SF 171s prior to the hearing. The Commission also found no error in the findings of the appellate decision. The agency's request was denied.

V

ENFORCEABILITY OF ARBITRATOR'S DECISION

DiPleco v. United States Postal Service, EEOC Request No. 05980032 (January 30, 1998).

When appellant was placed on emergency suspension because of a report in a newspaper article, she filed a grievance. An arbitrator awarded her appropriate back pay in June 1995. Appellant filed an EEO complaint in September 1996 in which she asserted she had not received her back pay, claiming discrimination on the bases of race (white), religion, sex, disability, and reprisal. The agency dismissed the complaint for failure to state a claim, and the dismissal was affirmed on appeal. In a request to reconsider, appellant stated that the award she received in September 1996 was in error, and that the agency had not yet paid her the correct amount.

The Commission stated that it will review an EEO complaint challenging an arbitration decision in certain circumstances, where there is an allegation of discriminatory administration of an agency's grievance process, or discriminatory implementation of an arbitration award. However, the Commission characterized this request as, in essence, a request to enforce the decision of the arbitrator, and ruled that it was outside the jurisdiction of the Commission. Appellant's request was denied.

VI

UNTIMELY FINAL AGENCY DECISION; ADVERSE INFERENCE

Miller v. United States Postal Service, EEOC Appeal No. 01956109 (January 23, 1998).

In May 1994, an EEOC AJ issued a recommended decision finding that appellant had been discriminated against on the bases of race and sex. Appellant had alleged that he was subjected to a meeting convened for the purpose of humiliating and demoralizing him because he was a white male who disciplined black females. The AJ also found that appellant presented objective evidence that he incurred compensatory damages, and that those damages were related to the discrimination.

The agency in a final decision issued in August 1994 concurred in the AJ's conclusion of race and sex discrimination, and adopted the recommended relief, including the award of compensatory damages. However, after failed negotiations on the amount of compensatory damages, the agency in July 1995 issued a final agency decision finding that appellant was not due any compensatory damages.

On appeal, the Commission found that the agency's final agency decision on the issue of compensatory damages was issued more than 60 calendar days after it received the AJ's recommended decision. Under 29 C.F.R. §1614.109(g), the agency was therefore bound by the AJ's decision. The Commission ruled that the agency's decision on compensatory damages was without legal effect. The Commission considered the facts of the case and surveyed several recent Commission decisions awarding damages for emotional distress, and awarded appellant past pecuniary damages and $7,500 in nonpecuniary damages. The Commission stated that in arriving at the amount of $7,500, it considered the nature and severity of the discrimination and of appellant's emotional distress, as well as the scant amount of evidence concerning his emotional distress. Also, the Commission considered the fact that the agency failed to submit a copy of the claim for compensatory damages that appellant had submitted to the agency, even though the Commission had asked the agency to do so. In view of the agency's failure to submit the document, the Commission drew an adverse inference that the information would have reflected unfavorably on the agency and would have provided further support for appellant's claim for compensatory damages. The agency was ordered to tender the specified compensatory damages.