The DIGEST Of Equal Employment Opportunity Law

Volume XIX, No. 3

Office of Federal Operations

Summer 2008

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Inside

Selected EEOC Decisions on:

Article

A CASE UPDATE: DISPARATE IMPACT AND AGE DISCRIMINATION

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SELECTED EEOC DECISIONS

Attorney's Fees

(See also, "Findings on the Merits," this issue. – Ed.)

Agency Misstatement in Decision Results in Additional Attorney's Fees. Following a hearing, an Administrative Judge (AJ) found that complainant was subjected to disability discrimination and reprisal when he was issued a letter of warning and seven-day suspension. The agency accepted the AJ's finding of discrimination. In its final decision, however, the agency noted that the AJ "determined that you had not established that you were discriminated against." Complainant's attorney subsequently drafted a document and contacted the agency with regard to the error. In addition, the attorney contacted the agency when it failed to pay complainant compensatory damages within sixty days as ordered by the AJ. Complainant's attorney submitted a supplemental application for attorney's fees and costs, and, when she did not receive payment for the amount, filed an appeal with the Commission. On appeal, the Commission found it reasonable that complainant's attorney conducted additional work in seeking compliance with the AJ's decision and in processing this appeal. Complainant's attorney submitted detailed documentation in support of her arguments, and the Commission found that the number of hours expended and hourly rate charged were reasonable. Michael P. Watson v. United States Postal Service, EEOC Appeal No. 0120071420 (September 30, 2008).

Class Complaints

Complaint That Fits Within Definition of Certified Class Must be Subsumed into the Class Complaint. Complainant, an applicant for employment, was a veteran with a disability rating of 30% or more, who was 'tentatively selected" for a position as a part-time flexible mail handler. He was told that he needed to provide additional medical documentation, which he stated he provided to the agency. The agency's nurse stated that complainant failed to submit the requested medical documentation; and the agency notified him that he was ineligible because he failed to provide sufficient documentation to complete the medical assessment. Complainant requested a hearing and the AJ issued a decision, without a hearing, finding no discrimination. The AJ concluded that complainant failed to present any evidence that would support a finding that the agency's articulated reasons for its action were a pretext for unlawful discrimination.

The Commission noted on appeal that the parties had not addressed the existence of a class complaint regarding the instant issue and that complainant's complaint concerned matters raised in Clarence M. Hill, et al. v United States Postal Service, EEOC Appeal No. 0120045646 (April 18, 2006). In Hill, the Commission conditionally certified a class of postal employees who claimed that the agency violated the Rehabilitation Act, when it requested all disabled veteran applicants seeking disabled veterans' preference to bring medical documentation, in excess of that which was required to verify their entitlement to the preference, to an interview before an offer of employment was made. The Commission determined in the instant case that the agency did not give complainant a firm offer of employment and that his non-selection claim fell within the certified Hill class. The Commission vacated the agency's finding of no discrimination and remanded the complaint to be subsumed within the Hill class complaint. Samuel L. Moss v. United States Postal Service, EEOC Appeal No. 0120063992 (October 8, 2008).

Compensatory Damages

(The decisions below are a selected sampling of recent awards of compensatory damages. See, also, "Findings on the Merits," this issue. – Ed.)

$120,000.00 Awarded for Two Discriminatory Nonselections. The Commission awarded complainant $120,000.00 in non-pecuniary compensatory damages following a finding of age and sex discrimination. The Commission found that the two discriminatory nonselections caused complainant to endure at least eight years of depression, anxiety, anger, shame, humiliation, marital strain, spiritual turmoil, sleep disturbances, and headaches. The Commission considered complainant's failure to respond to the agency's requests for medical documentation to support his claim in making the award, noting that complainant provided no evidence to support his claim of a possible breach of confidentiality if he did so. The Commission indicated that complainant's failure to provide supporting documentation weakened the credibility of a psychologist's diagnosis of Post Traumatic Stress and Adjustment Disorder. Nevertheless, testimony of complainant, his wife and co-workers showed that he experienced substantial emotional distress as a result of the discrimination. Milton Aponte v. Department of Homeland Security, EEOC Appeal No. 0120063532 (June 11, 2008), request for reconsideration denied, EEOC Request No. 0520080673 (September 10, 2008).

$100,000.00 Awarded for Disability-based Termination. The Commission found that complainant was subjected to disability discrimination when he was terminated from employment. Complainant, a probationary employee, injured his knee while at work. He underwent surgery and initially returned to work with certain temporary restrictions. Subsequently, complainant received a letter of termination for "inability to carry out the physical requirements" of his job. The Commission found that the agency regarded complainant as having an impairment that substantially limited the major life activities of lifting, standing, and walking. Further, the evidence supported a finding that the agency viewed complainant's limitations as being permanent. The record also showed that complainant was qualified for the position, as he had been performing the duties for eight months prior to his injury in a fully satisfactory manner, and was competitively promoted to a higher grade level. The Commission noted that the agency terminated complainant without giving him an opportunity to provide documentation regarding any permanent restrictions. The agency was aware that complainant had an appointment with his physician, and would submit the information within a reasonable period. Nevertheless, the agency terminated complainant prior to receiving that information. The agency was ordered to reinstate complainant, with back pay and benefits, and pay him $100,000.00 for harm that lasted for at least three years, including ongoing depression, low self-esteem, reduction in his quality of life; financial difficulties, feelings of rejection, humiliation and isolation, and weight gain. In addition to this harm, complainant was also forced to sell a life-time collection of rare coins and currency that complainant considered irreplaceable. Adam Sainz v. Department of the Treasury, EEOC Appeal No. 0720030103 (September 19, 2008).

$20,000.00 Awarded for Retaliatory Termination. Following a hearing, an AJ found that complainant was subjected to reprisal when she was terminated from her position. The AJ awarded complainant $20,000.00 in non-pecuniary compensatory damages. On appeal, the Commission affirmed the award based on testimony that the discrimination caused complainant to feel depressed, anxious and inadequate and caused her to separate from her fiancé. Jamie M. Hillyer v. Department of Homeland Security, EEOC Appeal No. 0120072290 (August 29, 2008), request for reconsideration denied, EEOC Request No. 0520080523 (October 31, 2008).

$13,000.00 Awarded for Sex Discrimination in Change of Schedule. The Commission found that complainant was subjected to discrimination on the basis of his sex when the agency frequently changed his schedule. The record showed that only the male supervisors had schedule changes during the period in question. In addition, the management official responsible for the changes contradicted his testimony as to the reason for these changes. The Commission then found that complainant was entitled to an award of $13,000.00 in compensatory damages. Complainant and his wife testified that the discrimination negatively affected his family life and caused him to become depressed. Donald Dennis v. United States Postal Service, EEOC Appeal No. 0720060071 (May 30, 2008).

$5,000.00 for Racially-Motivated Suspension. In a previous decision, the Commission found that complainant was subjected to race discrimination when he was issued a seven-day deferred suspension. Subsequently, the Commission determined that complainant was entitled to an award of $5,000.00 in non-pecuniary compensatory damages. The Commission noted that complainant submitted reports from several mental-health professionals indicating that he had depression, anxiety, and adjustment disorder. The reports, however, were inconclusive as to whether these conditions were caused by the discrimination. Nevertheless, the Commission found that the award was consistent with awards in similar cases for physical and emotional pain and suffering. Nathaniel McDaniel v. United States Postal Service, EEOC Appeal No. 0120065054 (February 21, 2008), request for reconsideration denied, EEOC Request No. 0520080382 (April 30, 2008).

$3,500.00 Awarded for Disability-based Removal. The Commission found that complainant was entitled to an award of $3,500.00 in non-pecuniary compensatory damages following a finding that she was subjected to disability discrimination when she was removed from her position. Complainant stated that she experienced anxiety, stress, loss of enjoyment of life, mental anguish, humiliation, paranoia and loss of self esteem. In addition, two co-workers corroborated her contentions. Juanita Padron v. United States Postal Service, EEOC Appeal No. 0120072520 (September 30, 2008).

$3,000.00 Awarded for Retaliatory Performance Appraisal. The agency found that complainant was subjected to reprisal when she received a lower performance evaluation. The agency then issued a decision on damages, which complainant appealed to the Commission. On appeal, the Commission noted that the only evidence linking any kind of emotional harm to the retaliatory act was a doctor's statement rendered 18 months after the injury. Nevertheless, the Commission agreed with the parties that complainant did suffer harm as a result of the reprisal and was entitled to an award of $3,000.00 in non-pecuniary damages. Norma J. Alvarado v. Department of the Navy, EEOC Appeal No. 0120081910 (July 17, 2008).

$1,500.00 Awarded for Denial of Reasonable Accommodation. The Commission affirmed the agency's decision awarding complainant $1,500.00 in non-pecuniary compensatory damages for harm sustained as a result of being denied reasonable accommodation. Complainant stated, through his representative, that he experienced mental anguish, loss of enjoyment of life, injury to character and reputation, injury to credit standing, and deteriorating health. Complainant, however, provided nothing to corroborate the claims. While complainant asserted that he should not bear the burden of proving damages, he is required to do so by more than a mere allegation. The Commission noted that complainant must provide some statement or other form of evidence describing the effect of the discrimination. The Commission determined that the agency's award of $1,500.00 was appropriate and consistent with comparable cases. Earl C. Glaude v. Department of Defense, EEOC Appeal No. 0120064851 (July 25, 2008).

Dismissals

(See, also, by category, this issue.—Ed.)

Agency Fails to Show Complainant Withdrew Complaint. While complainant emailed the assigned EEO Counselor relating to not pursuing the EEO complaint process, the record contained no signed withdrawal of her informal EEO complaint. Moreover, the agency had sent complainant a notice of the right to file a complaint and, shortly thereafter, a complaint was filed. The Commission found that complainant filed a timely complaint and directed the agency to process it. Claudia Baker v. Department of State, EEOC Appeal No. 0120082848 (October 2, 2008).

Dismissal for Failure to Cooperate Improper Where Request for Information Not Received. The agency sent complainant a request for an affidavit, along with instructions and forms for completing the affidavit. The agency dismissed the complaint, contending that complainant failed to return the requested affidavit, despite a written warning in the packet that failure to provide the affidavit could result in dismissal of the complaint. On appeal, the Commission noted that the agency's Consumer Affairs Office had found that the item was not delivered to complainant as alleged. The Commission found that complainant did not receive the agency's request for information until after issuance of the FAD. The Commission concluded that the agency should grant additional time to complainant for submitting the affidavit rather than dismissing the complaint. The complaint was remanded to the agency for further processing. Crystal L. Gumby v. United States Postal Service, EEOC Appeal No. 0120083710 (November 6, 2009).

Findings on the Merits and Related Decisions

(See by statute, as well as multiple bases, this issue. –Ed.)

--Under the ADEA—

Age Discrimination Found in Nonselection. Complainant, a Physical Scientist, applied for a Team Leader position with the agency. He was found to be eligible, but was not selected for the position. The selecting official, who was also complainant's immediate supervisor, explained that he did not use a ranking or rating plan, and did not review applications. Instead, the selecting official and another consulting official made the selections based on their personal knowledge of and experience with the candidates. The selecting official stated that he originally chose complainant for the position based in part on the fact that complainant had previously held the Team Leader position in a temporary capacity. Nevertheless, the consulting official did not support him and believed the selectee should be chosen because he was a "good worker" while complainant was "harder to work with."

On appeal, the Commission noted that the agency conceded that complainant established a prima facie case of discrimination. Further, the agency articulated a legitimate, non-discriminatory reason for its action, that is, complainant lacked the necessary leadership qualities for the position. The Commission, however, concluded that the agency's stated reason was a pretext for age discrimination. The selecting official referred to complainant as the "strongest Team Leader," while the selectee had never served as a Team Leader or a supervisor. In addition, the record showed that complainant received high level performance appraisals praising his work and accomplishments; and witnesses testified as to complainant's superior leadership qualities. The Commission noted that the evidence, taken as a whole, disproved the agency's claim that complainant lacked leadership skills.

Finally, the Commission found that age was a determinative influence on the selection. Specifically, the selecting official stated that he did not feel at liberty to recommend complainant because of age discrimination issues he himself had with a higher-level official. The agency was ordered to offer complainant a Team Leader or substantially-equivalent position and provide training to all named officials. Steven L. DeForest v. Department of Energy, EEOC Appeal No. 0120070681 (September 30, 2008).

--Under the Rehabilitation Act—

Impermissible Dissemination of Medical Information. The Commission found that the agency violated the Rehabilitation Act when complainant's supervisor disseminated information regarding his medical condition. According to the record, complainant's supervisor lectured him in front of co-workers about the dangers of smoking while having heart disease. The Commission found that the dissemination of this information constituted a violation of the Rehabilitation Act since the medical condition or history of any employee must be treated as a confidential medical record. The agency was ordered to provide training for the supervisor in question and investigate complainant's claim for compensatory damages. Danny L. Price v. United States Postal Service, EEOC Appeal No. 0120070997 (May 22, 2008).

Unlawful Disability-Related Inquiry; Complainant Not Permitted to Return to Work. Complainant, who had previously been diagnosed with back pain, sciatica, and lumbar strain, submitted a note from his physician to his immediate supervisor asking that he be excused from work due to an examination for chronic lumbar problems, as well as diabetes, high blood pressure, and depression. Complainant was then told to clock out and go home because the note indicated he was seen for depression. The agency subsequently made several attempts to contact complainant's physician while complainant remained off from work. After several months, complainant's physician submitted correspondence to the agency diagnosing complainant with adjustment disorder and depression, and the agency's medical director determined that complainant could return to work without limitations. Complainant, however, did not return to work and later applied for disability retirement. On appeal, the Commission affirmed the AJ's finding of disability discrimination. The Commission noted that complainant's supervisor and the postmaster testified that they did not believe complainant's medical condition impaired his ability to perform the essential functions of his modified position, or posed a direct threat to the health and safety of complainant or any other employees. Instead, the agency made the inquiry solely because the word "depression" was used by complainant's physician. The agency was ordered to pay complainant all pay and benefits he would have received during the period he was not permitted to return to work. Rogelio A. Bernal v. United States Postal Service, EEOC Appeal No. 0720080038 (June 17, 2008).

--Under Title VII—

National Origin Harassment. The Commission found that complainant was subjected to a hostile work environment because of his national origin (Hispanic). According to the record, complainant's co-workers made discriminatory comments about his national origin, as well as discriminatory comments toward women and other protected classes. When the harassment was reported to the supervisor, he took no action and, subsequently issued complainant a memorandum of warning. The Commission found that discrimination toward minorities permeated the workforce and altered the conditions of complainant's employment. Further, many of the offensive comments occurred in front of supervisors immediately after a meeting about EEO issues, yet the agency failed to exercise reasonable care to prevent and promptly correct the harassing behavior. The agency was ordered to provide training for the management officials at the facility and conduct a supplemental investigation with regard to compensatory damages. George DeLos Santos v. Environmental Protection Agency, EEOC Appeal No. 0120061139 (January 11, 2008) request for reconsideration denied, EEOC Request No. 0520080325 (August 4, 2008).

Race Discrimination Found in Mixed Motive Case. Complainant filed a formal EEO complaint alleging that he was subjected to race (African-American) discrimination when he was not selected for a Traffic Manager position. Following a hearing, an AJ found that discrimination was one of several motivating factors in the nonselection. Specifically, the AJ noted that the selecting panel members improperly discussed and considered the race of complainant and the selectee. Nevertheless, the AJ determined that the panel's recommendation of the selectee as the best qualified candidate was justified and would have been made absent the discrimination. On appeal, the Commission affirmed the AJ's findings. While there was no need for the selection panel to discuss the candidates' race, the record supported the conclusion that the selectee was better qualified and would have been recommended as the top candidate even absent the impermissible discussion. The agency was ordered to pay attorney's fees, which the Commission reduced to reflect those fees directly related to the claim. Oliver J. Bell III v. Department of the Navy, EEOC Appeal No. 0720080024 (June 25, 2008).

Sexual Harassment Found. The Commission found that complainant was subjected to unlawful sexual harassment based on one incident of offensive touching and comments by a co-worker. According to the record complainant immediately reported the incident to her supervisor, and the co-worker admitted that he acted as complainant claimed. The co-worker received an official discussion and was told to have no further contact with complainant, but he was not disciplined for his actions. The supervisor and a manager both testified that they believed it was the other's responsibility to discipline the co-worker. The Commission found that the conduct in question was unwelcome. Further, the conduct, which included simulating a sexual act, was sufficiently severe since it was an extreme violation of complainant's physical person and an inappropriate touching of her intimate body areas. The Commission noted that the official discussion given to the co-worker did not include any sort of admonishment of his behavior or a clear statement that the behavior was inappropriate. Finally, the agency's own policy required that some disciplinary action be taken. The agency was ordered to refer the matter for a hearing on the issue of compensatory damages. Pamela Weaver v. United States Postal Service, EEOC Appeal No. 0120065324 (August 26, 2008), request for reconsideration denied, EEOC Request No. 0520090004 (October 29, 2008).

--Under Multiple Bases—

Harassment Based on Sex and Age. Complainant filed a formal complaint alleging that she was subjected to harassment on the bases of her sex and age. Specifically, she stated that her supervisor screamed at her, and ultimately placed her in an off-duty status without pay. The record showed that, for more than one year, the supervisor yelled at complainant, physically intimidated her, and frightened her, causing her severe anxiety and depression. In addition, on one occasion, he confronted complainant in such a way that complainant believed he was going to hit her; and, after she went to the restroom to get away, he informed complainant that he had clocked her out. The Commission initially affirmed the decision by the AJ to issue a decision on summary judgment. The Commission noted that even if the supervisor had testified as to the tone of his interactions with complainant, the testimony could not have stood up against other evidence concerning the harassment. The Commission found that the actions of the supervisor were sufficiently severe and pervasive to create a hostile work environment. The agency was ordered to pay complainant for any lost earnings, as well as $25,000.00 in non-pecuniary compensatory damages for the violation of Title VII. Joan Schmidt v. United States Postal Service, EEOC Appeal No. 0720080030 (June 9, 2008).

--Retaliation—

Reprisal Found in Discussion of EEO Complaint and Solicitation of Testimony. The Commission found that complainant was subjected to reprisal when the Officer in Charge discussed her EEO complaint and solicited testimony from other employees. The record showed that the Officer in Charge told personnel in the office that complainant had filed an EEO complaint and solicited testimony from other employees. The Commission stated that such behavior is reasonably likely to deter protected EEO activity, and constitutes reprisal discrimination. The agency was ordered to conduct a supplemental investigation with regard to compensatory damages, and provide training to the named management official. Kalee Medrano v. Department of Homeland Security, EEOC Appeal No. 0120071480 (September 30, 2008), request for reconsideration denied, EEOC Request No. 0520090091 (January 30, 2009).

Sanctions

Commission Draws Adverse Inference Against the Agency in Award of 100 Percent of Back Pay. The agency had initially found that complainant and another employee had been subjected to age discrimination when they were not selected for a supervisory position. The agency then stated that it was unable to determine which candidate would have been offered the position, and divided the monetary value of the lost promotion pro rata between both individuals. The Commission found the agency's failure to make any attempt to ascertain the proper selectee to be alarming, stating that the agency had an affirmative obligation to take measures to eradicate discrimination in the work place. The agency should have at least taken additional evidence on the question of whom the selecting officials would have hired. Instead, the agency merely stated that the record did not contain such evidence. Thus the Commission inferred, based on the agency's actions and inactions, that complainant would have been selected for the position but for his age, and awarded complainant 100 percent of the back pay. The Commission also ordered the agency to offer complainant the supervisory position. Lester Coleman v. Department of Labor, EEOC Appeal No. 0120062552 (June 6, 2008), request for reconsideration denied, EEOC Request No. 0520080675 (January 7, 2009).

Settlement Agreements

Settlement Agreement Void: No Meeting of the Minds. The parties entered into a settlement agreement which provided that a specific manager would "release [complainant] to be released" for an Officer in Charge assignment on a certain date. Complainant maintained that the agreement guaranteed the manager would place him into the position, while the agency asserted that the manager would only release complainant once complainant secured the assignment through his own efforts. The Commission noted that there was support for both positions, and no evidence of bad faith on the part of either party. Thus, the Commission concluded there was no meeting of the minds and found the agreement void. The agency was instructed to reinstate the underlying complaint. James O. Graham v. United States Postal Service, EEOC Appeal No. 0120071586 (June 9, 2008).

Agency Breached Settlement Agreement When New Job Offer Did Not Include Existing Duties. The agency agreed to provide to complainant an Offer of Modified Assignment by identifying the duties of a Bulk Mail Entry Unit (BMEU) clerk. Subsequently, the agency provided her with a new job offer which included duties that were outside the settlement agreement. When management learned that the agency was considering closing the Bulk Mail Center, a new temporary modified job offer was provided to complainant. Complainant argued that the duties set forth in the agreement still existed. The Commission found that complainant's offer was to include the duties of a BMEU clerk and that the new job offer did not include such duties. The Commission found that the agency breached the agreement and ordered that the agency to reinstate complainant's underlying EEO complaint. Wanda Martinez v. United States Postal Service, EEOC Appeal No. 0120082780 (August 25, 2008).

Agency Breached Settlement Agreement When It Accepted Its Insurer's Opinion Instead of Complainant's Medical Specialist's Opinion as to Her Disability. The agency agreed to accept complainant's medical specialist's opinion as to whether she was totally and permanently disabled from gainful employment so that she could take disability retirement. Complainant submitted a six-page medical report which provided a review of her medical record and a diagnosis of her disabilities. The insurer, which administered the agency's Managed Disability Program, denied complainant's application for disability benefits. It found that the provided information was insufficient and failed to "establish and support [complainant's] inability to perform the essential functions of [her] own occupation as a computer technician." The Commission found that the agency had expressly agreed that it would accept as sufficient evidence--for the purpose of disability retirement--an expert's medical opinion provided by complainant that she was totally and permanently disabled,. Regardless of the standards usually applied by the insurer in reviewing disability retirement applications, in this instance the agency agreed that it would be bound by complainant's secured expert medical opinion. The Commission ordered the agency to reinstate complainant's disability retirement application and instruct the insurer that complainant's specialist's opinion must be accepted as sufficient evidence to support the decision granting complainant's disability retirement. Olga Velazquez-Mateo v. Department of Defense (Army and Air Force Exchange Service), EEOC Appeal No. 0120082631 (August 25, 2008).

Breach Found in Agency's Failure to Remit Back Pay. The settlement agreement provided that the agency would adjust complainant's pay to Level 5 for all pay periods that were incorrectly paid at Level 4. Complainant alleged that the agency failed to tender the back pay. The agency decision stated that the District Complement Coordinator who signed the agreement would find out if any back pay were due. The Commission found that the settlement agreement provided for an express agency obligation to adjust to Level 5 all pay that was incorrectly paid to complainant at Level 4. The Commission ordered the agency to implement the terms of the settlement agreement. Nina S. Cheng v United States Postal Service, EEOC Appeal No. 0120082825 (August 28, 2008).

Agency Violates Rotation of Jobs Provision. The settlement agreement provided that there would be rotation of jobs for all career hires and casuals in complainant's work unit. The agency asserted that its failure to rotate complainant did not breach the settlement agreement because the agency assigned jobs based on "employee availability and skill." The Commission found that the agency breached the agreement when the supervisor only assigned work on "employee availability and skill." The Commission held that the agency waived its right to assign work based solely on that criteria and instead agreed to a rotation of jobs. The Commission ordered the agency to provide complainant with the option in writing of either voiding the settlement agreement and reinstating his underlying complaint; returning him to status quo ante; or accepting the agency's promise to adhere in good faith in the future to the terms of the agreement. Brad J. Harmon v. United States Postal Service, EEOC Appeal No. 0120083257 (November 12, 2008).

Agency in Substantial Compliance: Absent Specified Time Limit, Duration Governing Agency's Obligations is Determined By Reasonableness. The 2000 settlement agreement provided for the change of complainant's starting time, work days, and days off but did not specify how long its provisions were to remain in effect. In 2007, the agency--in order to improve its efficiency and service--moved complainant's work facility and changed his hours. The Commission found that the agency was unquestionably in compliance with the agreement for nearly seven years and held that, when a time limit is not specified, the agency is required to act, or refrain from acting, for a reasonable amount of time. Accordingly, the Commission held that the agency had substantially complied with the settlement agreement by maintaining complainant's work schedule in accordance with the agreement for nearly seven years. Vernon L. Nelson v. United States Postal Service, EEOC No. 0120072599 (September 30, 2008).

Agency Admits Non-compliance; Commission Orders Specific Performance. The settlement agreement provided in part that the agency pay complainant a performance award equal to 1.1 percent of his annual pay. The agency admitted it had not complied with that provision, but contended that it was working to implement the term. The Commission found that, inasmuch as the agency has not provided complainant with the performance award, the agency was in breach. The Commission ordered the agency to pay the award within 30 calendar days from the date of the decision and submit a report of compliance. Joey D. Davis v. Department of Homeland Security, EEOC Appeal No. 0120070017 (September 30, 2008).

Stating A Claim

(In the following cases, the Commission found complainant's claims to be cognizable. –Ed.)

Darlene L. Gatto v. United States Postal Service, EEOC Appeal No. 0120082204 (August 27, 2008). (agency's assessment of claim impermissibly goes to merits of complaint; complainant had alleged that her supervisor threatened to remove her from agency employment and subjected her to harassment and remarked that if she would leave her husband, he would "take care of" her; postmaster took immediate action and moved complainant to a different position to complete her probationary period and made sure the alleged harasser and complainant no longer worked together; agency dismissed complaint concluding complainant did not suffer any job-related loss or injury and agency took immediate remedial action.) And see Sherry L. Trujillo v. United States Postal Service, EEOC Appeal No. 0120082575 (November 5, 2009) (agency's subsequent assertion clarifying "English only" rule is irrelevant

to procedural issue of whether complainant's claim is justiciable, where rule was subject of complaint.)

Deborah S. Wellman v. United States Postal Service, EEOC Appeal No. 0120083703 (November 6, 2008) (claim of hostile work environment harassment viable where allegation was that her supervisor stated in front of complainant's coworkers that no one wanted to work with her, resulting in her being publicly belittled and humiliated because the co-workers ridiculed her with numerous jokes, remarks, and comments among themselves.) William J. Wheatley v. Department of Labor, EEOC Appeal No. 0120082633 (November 13, 2008) (claim of discriminatory harassment viable where complainant alleged being subjected to threats and monitoring regarding sick leave by supervisor, who purportedly made comments about older workers abusing sick leave.)

Teresa Y. Werkeiser v. United States Postal Service, EEOC No, 0120083367 (November 12, 2008) (EEOC persuaded that complainant alleged hostile work environment based on sex, as opposed to sexual orientation although agency identified sex (Sexual Orientation/Association With), when complainant alleged management treated a male coworker more favorably; and postmaster told her that due to her child's sexual orientation she would always have a stigma attached to her.)

(In the following cases, the Commission affirmed the agency determination that the complainant failed to state a claim. –Ed.)

Stephen J. Kinney v. United States Postal Service, EEOC Appeal No. 0120082922 (August 28, 2008), request to reconsider denied, EEOC Request No. 0520090020 (October 31, 2008) (claim that complainant was subjected to discrimination when Postmaster took more seriously female co-worker's claim of sexual harassment than his claim of finding a pornographic picture in mail he was sorting, and subjected him to a pre-disciplinary interview concerning an accident he had on his route, not viable for purposes of disparate treatment or harassment action.)

Qudsia Quraishi v. Department of Commerce, EEOC Appeal No. 0120083146 (November 5, 2008), request to reconsider denied, EEOC Request No. 0520090176 (January 16, 2009) (complainant, a graduate student in physics completing research at the agency's facility, was not an employee of the agency: her guidance came from her advisor, who worked at the agency as a physicist and was also an adjunct faculty professor for the university; complainant had considerable autonomy in performing research on projects and was paid by the university, which handled all payroll and benefit issues; agency did not pay social security taxes on complainant's behalf; agency did not exercise sufficient control over complainant to qualify as the employer or joint employer of complainant for EEO purposes.)

Richard Hage v. Department of Veterans Affairs, EEOC Appeal No. 0120082845 (November 10, 2008) (failure to identify specific basis of discrimination for the discriminatory incidents alleged; where complainant indicated he could "only speculate" regarding discrimination causes complaint to fail.)

Cheryl McKay v. Department of Interior, EEOC Appeal No. 0120072550 (September 30, 2008) (complainant an employee of an independent contractor and not an agency employee: her salary and schedule were controlled by an independent contractor and complainant identified herself as an employee of an independent contractor; fact that agency may have played minor role in the work process did not necessarily amount to sufficient control to bring the claim within ambit of Title VII.) And see Tanja L. Rouse v. Department of the Army, EEOC Appeal No. 0120082513 (August 25, 2008) (former student worker with the agency employed under a contract for temporary or intermittent services for specific time period with set rate of pay; and contract specifically stated that student not a government employee, not entitled to leave or other benefits, and government did not pay taxes on behalf of student, thus, complainant not employee under Commission's regulations.)

Douglas M. Richardson v. United States Postal Service, EEOC No. 0120071425 (September 30, 2008) (request for medical documentation not actionable where request was for two-day absence after complainant sought to take sick leave; complainant identified an "On the Job Injury" on his PS Form 3971 as the cause of his incapacitation for duty and was required to provide medical documentation to substantiate absences; request for medical documentation was single, isolated event, not part of an ongoing series of actions constituting pattern of discriminatory harassment.)

Timeliness

Complaint Timely, Absent Proof of Receipt of Notice of Right to File (NORF), If Filed Within 15 Days of 5-Day Presumption of Receipt. After complainant advised the agency that she did not receive the first NORF, the agency re-sent it on July 19, 2006. According to the agency, it received the complaint on August 7, 2006, and, although it had initially accepted the complaint for investigation, the agency moved to dismiss the complaint. An AJ granted the motion. On appeal, the Commission held that, since there is no proof as to when complainant received the July 19, 2006 NORF, complainant's filing on August 7, 2006, was reasonable as it was within 15 days of the 5-day presumption date for NORF receipt. Jonica Forney v. Department of Veterans Affairs, EEOC Appeal No. 0120081708 (August 26, 2008).

Rare and Confusing Circumstances May Warrant Extension of Time Limit for Initiating EEO Contact. Complainant, a Program Support Clerk, contacted an EEO Counselor on September 25, 2007, alleging that the agency discriminated against him on the basis of disability when it subjected him to hostile work environment harassment forcing him to apply for disability retirement. The agency dismissed the complaint for untimely EEO Counselor contact, stating that complainant initiated EEO contact on October 23, 2006, and December 4, 2006, regarding management's request for medical information and disciplinary actions, respectively. The agency indicated that complainant chose not to file an EEO complaint on either matter. On appeal, complainant stated that the EEO Manager deceived him into thinking that he had filed a formal complaint in August 2006. The Commission concluded that the circumstances in total were rare and, in some instances, confusing. The Commission found that the record showed that complainant initiated EEO contact regarding hostile work environment harassment in a timely manner in 2006; that complainant stated that he was pursuing a formal complaint on these matters with the EEO Manager; and that an allegation of constructive retirement could be related to complainant's claim of harassment and serve as an amendment to his harassment claim because the agency did not complete an investigation on the matter. Held: an extension of the time limit for initiating EEO contact was warranted regarding complainant's constructive retirement claim. Alfred Baker v. Department of Veterans Affairs, EEOC Appeal No. 0120081823 (August 28, 2008), request to reconsider denied, EEOC Request No. 0520090025 (November 5, 2008).

Untimely Complaint Filing: No Incapacitation Shown. The agency's EEO Counselor issued the notice of right to file, which complainant received on November 1, 2007. The 15th day from complainant's receipt of the notice was November 16, 2007. The agency received complainant's formal complaint by facsimile transmission on November 17, 2007, at 1:26 a.m. Thereafter, the agency sent complainant a request for additional information inquiring as to why the complaint was filed beyond the 15-day time period. Complainant explained that he sent his complaint by facsimile on November 16, 2007, between 11:57 and 11:58 p.m., but due to the fax dial-up connection, it was likely it was not transmitted until the early morning of November 17, 2007. Complainant also stated that he planned to submit the complaint earlier in the day but was delayed from doing so due to illness. However, complainant submitted no evidence that he was so incapacitated as to be unable to file his complaint in a timely manner. Additionally, even on appeal, complainant submitted no proof of his contention that he had, in fact, timely faxed his complaint on November 16, 2007. The Commission affirmed the agency's decision to dismiss complainant's complaint as untimely. Evangleses Moore, Jr. v. Department of the Treasury, EEOC Appeal No. 0120082579 (November 5, 2008).

Disparate Impact and Age Discrimination: A Review of the Supreme Court's Decision in Meacham v. Knolls Atomic Power Laboratory

(The following article is not intended to be an exhaustive or definitive discussion of a complex area of law. For more detailed information and additional resources, the reader is advised to consult the Commission's website at www.eeoc.gov. –Ed.)

For many years, the Commission has held that the theory of disparate impact discrimination can be used in challenging illegal discrimination under the Age Discrimination in Employment Act (ADEA)¹ against federal agencies. Complainants could establish a prima facie case of disparate impact discrimination by showing that an agency policy or practice, while neutral on its face, disproportionately impacted members of the protected class, that is, workers age 40 and above. Once the complainant established a prima facie case, the burden shifted to the agency to show the adverse impact was attributable to a reasonable factor other than age. Recently, the United States Supreme Court addressed the issue of which party bears the burden of persuasion on the "reasonable factor other than age" provision. The Court granted certiorari in Meacham, et al. v. Knolls Atomic Power Laboratory,² and held that an employer defending an ADEA disparate impact claim bears both the burden of production and the burden of persuasion on the reasonable factor other than age defense.

BACKGROUND

The Supreme Court previously held in Smith, et al. v. City of Jackson, Mississippi,³ that the ADEA authorizes recovery in disparate impact cases. In City of Jackson, city employees brought suit under the ADEA claiming that the salary increases given to older police and public safety officers were less generous than those received by younger workers. The Supreme Court rejected the Court of Appeals' finding that disparate impact claims are categorically unavailable under the ADEA. Nevertheless, the Court noted that the language of the ADEA is significantly narrower, in that its coverage permits an otherwise prohibited action where the differentiation is based on a reasonable factor other than age.

In addition, the Commission has long recognized that claims of disparate impact are applicable under the ADEA.⁴ Complainants must first establish a prima facie case of disparate impact by showing that a facially neutral policy or practice disproportionately impacted members of the protected class. The complainant can do this by presenting statistical evidence that demonstrates a statistical disparity that is linked to the challenged policy or practice.⁵ The complainant must identify the specific policy or practice challenged, show statistical disparities, and show that the disparity is linked to the challenged policy or practice.⁶ The burden is on the complainant to show that the facially neutral standard affects the individuals within the protected group "in a significantly discriminatory pattern."⁷

If the complainant successfully establishes a prima facie case of disparate impact discrimination, the issue of liability then turns on whether the agency can show that the adverse impact was attributable to a reasonable factor other than age. In City of Jackson, the Supreme Court noted that the reasonableness inquiry does not examine whether the employer could have achieved its goals by other means that do not result in a disparate impact.⁸

THE MEACHAM COURT

Knolls Atomic Power Laboratories (Knolls) managed and operated a federally owned research and development laboratory. In 1996, Knolls instituted an involuntary reduction in force to reduce its workforce by 31 employees. In order to select those for layoff, Knolls asked managers to rate their employees on three factors: performance, flexibility, and critical skills. The scores were added together, along with points for years of service, and those with the lowest scores were let go. Of the 31 employees identified for layoff, 30 were over 40 years of age. According to the record, only approximately 58 percent of Knolls' workforce was older than 40. Plaintiffs filed suit raising both disparate treatment and disparate impact theories of discrimination under the ADEA. The Second Circuit Court of Appeals ultimately ruled in favor of Knolls, finding that the plaintiffs bear the burden of proving that the employer's justification for its action is unreasonable, a burden which they had not met.

The Supreme Court reversed the Court of Appeals, and held that an employer defending a disparate impact claim under the ADEA bears both the burden of production and the burden of persuasion for the reasonable factor other than age defense. The Court initially noted that the text and structure of the ADEA indicate that the reasonable factor other than age provision creates an affirmative defense for which the burden of persuasion falls on the employer. Specifically, the reasonable factor other than age provision is set forth in the section of the ADEA which lists exemptions for otherwise prohibited practices.⁹ The Court noted that it is a longstanding practice that the party claiming the benefits of an exemption, in this case the employer, bears the burden of proof.¹⁰

The Court rejected Knolls' argument that the reasonable factor other than age clause should be read as a mere elaboration on an element of liability. In City of Jackson, the Court explained that the "very definition of disparate impact" was that an employer who classifies his employees without respect to age may still be liable if the classification adversely affects the employee because of his or her age.¹¹ An action based on a factor other than age is the very premise for disparate impact liability, and not a defense to it.¹² Instead, the focus of the defense is whether the factor relied upon was "reasonable."¹³ It is assumed that, in the case of a reasonable factor other than age defense, a non-age factor came into play. Further, the principal role of the reasonable factor other than age provision is to preclude liability if the adverse impact was attributable to a non-age factor that was "reasonable."¹⁴

The Supreme Court also rejected the argument that the burden-shifting framework of Wards Cove Packing Co. v. Atonio¹⁵ applied to the reasonable factor other than age defense. The Court of Appeals had concluded that, because the decision in City of Jackson ruled out the business necessity inquiry in ADEA cases and replaced it with the reasonable factor other than age defense, the burden of persuasion must rest with the complaining party. The Supreme Court, however, disagreed with that rationale. The Supreme Court noted that the decision in City of Jackson stated that Wards Cove's pre-1991 interpretation of Title VII remained applicable to the ADEA.¹⁶ However, City of Jackson made only two specific references to aspects of Wards Cove that might in fact have remained applicable to the ADEA: the existence of disparate impact liability, and the plaintiff's burden of identifying which particular policy or practice allegedly cause the disparate impact.¹⁷ Neither of these references contradicts the view that the reasonable factor other than age provision is an affirmative defense. Further, the Supreme Court stated that Wards Cove did not address any statutory defense. The Supreme Court concluded that City of Jackson did not imply that the burden of proving any business-related defense falls on the plaintiff.

THE RESULT

Both Commission and Supreme Court precedent have held that employees may raise a claim of disparate impact discrimination under the ADEA. Further, if a complainant can establish a prima facie case of disparate impact discrimination, the employer can avoid liability by showing that the adverse impact was the result of a reasonable factor other than age. The Supreme Court's decision in Knolls confirms that the employer has both the burden of proof and the burden of `persuasion with regard to that affirmative defense. The decision in Knolls is consistent with the Commission's long-standing position that the reasonable factor other than age provision of the ADEA is an affirmative defense on which the employer bears the burden and proof and persuasion.

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Footnotes

¹ The Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

² 128 S.Ct. 2395 (2008).

³ 544 U.S. 228 (2005).

⁴See Daniel S. Witkowsky v. Department of the Interior, EEOC Petition No. 03970122 (January 30, 1998).

⁵Watson v. Fort Worth Bank and Trust, 487 U.S. 977 (1988).

⁶Id.

⁷Charles E. Kimble v. Department of Commerce, EEOC Request No. 05950638 (June 20, 1997).

⁸City of Jackson, at 243.

⁹ 29 U.S.C. § 623(f)(1). In addition to the reasonable factor other than age provision, the ADEA provides an exemption where age is shown to be a bona fide occupational qualification reasonably necessary to the normal operation of a particular business, and when the practice in question involves an employee working in a foreign country and compliance with the statute would cause the employer to violate the laws of that country.

¹⁰Knolls, at 2400.

¹¹Id, at 2403.

¹²Id.

¹³Id.

¹⁴Id.

¹⁵ 490 U.S. 642 (1989). In Wards Cove, the Supreme Court narrowly construed the scope of disparate impact liability with regard to Title VII. Subsequently, the Civil Rights Act of 1991 effectively codified the requirement that an employer must prove a legitimate business purpose and not merely produce evidence of it. 42 U.S.C. § 2000e.

¹⁶Knolls, at 2404.

¹⁷Id.